Gino L. DiVito
Tabet DiVito & Rothstein LLC, Chicago
Former Illinois Appellate Court Justice
Member, Special Supreme Court Committee on Illinois Evidence
containing the codied rules,
the Committee’s general and specic comments,
side-by-side comparison with the Federal Rules of Evidence,
and commentary on both evidence rules,
including relevant case law, statutes, and court rules
Last Revised: January 1, 2022
The IllInoIs Rules of evIdence:
A coloR-coded GuIde
© Copyright 2022 by Gino L. DiVito. All rights reserved.
No copyright is claimed as to the Federal or Illinois Rules of Evidence themselves,
any statute or order of the Supreme Court, or the commentary of the Special Su-
preme Court Committee on Illinois Evidence.
iii
TAble of conTenTs
PRefAce To The JAnuARy 1, 2021 edITIon � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � Ix
PRefAce To The JAnuARy 1, 2016 edITIon � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � xvII
PRefAce To The decembeR 2010 edITIon � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � xIx
sePTembeR 23, 2010 oRdeR of The suPReme couRT of IllInoIs � � � � � � � � � � � � � � xxI
The IllInoIs Rules of evIdence � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1
General Commentary by the Special Supreme Court Committee
on Illinois Evidence ................................................... 1
ARTIcle I� GeneRAl PRovIsIons
. Scope ..................................................... 11
. Purpose and Construction ..................................15
. Rulings on Evidence ........................................16
. Preliminary Questions ......................................37
. Limited Admissibility ....................................... 43
. Remainder of or Related Writings or Recorded Statements ......45
ARTIcle II� JudIcIAl noTIce
. Judicial Notice of Adjudicative Facts .........................47
ARTIcle III� PResumPTIons In cIvIl AcTIons And PRoceedInGs
. Presumptions in General in Civil Actions and Proceedings ......53
[ not adopted.] ............................................... 55
ARTIcle Iv� RelevAncy And ITs lImITs
. Denition of “Relevant Evidence” ...........................57
. Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible ................................................60
. Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time ................................61
. Character Evidence Not Admissible to Prove
Conduct; Exceptions; Other Crimes ...................................63
. Methods of Proving Character ...............................91
. Habit; Routine Practice .....................................96
. Reserved. [Subsequent Remedial Measures] ...................98
iv
. Compromise and Oers to Compromise .................... 101
. Payment of Medical and Similar Expenses .................. 104
. Inadmissibility of Pleas, PleaDiscussions, and
Related Statements ................................................. 105
. Liability Insurance ....................................... 109
. Prior Sexual Activity or Reputation as Evidence ............. 110
. Evidence of Other Oenses in Criminal Cases ............... 114
[ not adopted.] ............................................. 118
[ not adopted.] ............................................. 120
ARTIcle v� PRIvIleGes
. General Rule ............................................ 121
. Attorney-Client Privilege and Work Product;
Limitations on Waiver .............................................. 132
ARTIcle vI� WITnesses
. General Rule of Competency .............................. 137
. Lack of Personal Knowledge ............................... 140
. Oath or Armation ...................................... 141
. Interpreters .............................................. 142
. Competency of Judge as Witness ........................... 143
. Competency of Juror as Witness ........................... 144
. Who May Impeach ....................................... 150
. Evidence of Character of Witness for Truthfulness
or Untruthfulness .................................................. 151
. Impeachment by Evidence of Conviction of Crime .......... 156
. Religious Beliefs or Opinions .............................. 161
. Mode and Order of Interrogation and Presentation .......... 162
. Writing Used To Refresh Memory .......................... 165
. Prior Statements of Witnesses ............................. 166
. Calling and Interrogation of Witnesses by Court ............ 170
. Exclusion of Witnesses .................................... 171
v
ARTIcle vII� oPInIons And exPeRT WITnesses
. Opinion Testimony by Lay Witnesses ...................... 177
. Testimony by Experts ..................................... 185
. Bases of Opinion Testimony by Experts ..................... 201
. Opinion on Ultimate Issue ................................ 208
. Disclosure of Facts or Data Underlying Expert Opinion ...... 209
[ not adopted.] ............................................. 214
ARTIcle vIII� heARsAy
. Denitions .............................................. 217
. Hearsay Rule ............................................ 237
. Hearsay Exceptions; Availability of Declarant Immaterial ..... 238
. Hearsay Exceptions; Declarant Unavailable ................. 276
. Hearsay Within Hearsay .................................. 292
. Attacking and Supporting Credibility of Declarant ........... 293
[ not adopted.] ............................................. 295
ARTIcle Ix� AuThenTIcATIon And IdenTIfIcATIon
. Requirement of Authentication or Identication ............. 309
. Self-authentication ....................................... 319
. Subscribing Witness’ Testimony Unnecessary ................ 328
ARTIcle x� conTenTs of WRITInGs, RecoRdInGs, And PhoToGRAPhs
. Denitions ............................................. 329
. Requirement of Original ................................. 331
. Admissibility of Duplicates ............................... 332
. Admissibility of Other Evidence of Contents ............... 333
. Public Records .......................................... 334
. Summaries ............................................. 335
. Testimony or Written Admission of Party .................. 336
. Functions of Court and Jury ............................. 337
ARTIcle xI� mIscellAneous Rules
. Applicability of Rules .................................... 339
vi
. Title ................................................... 344
RelATed sTATuTes And suPReme couRT Rules � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 345
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viii
I’M NOT AWARE OF ANY FREESTANDING GUIDE ON THE DIFFERENCES BETWEEN
the Federal Rules of Evidence (FRE) and the Illinois Rules of Evidence (IRE). Until now.
In my book, “e Illinois Rules of Evidence: A Color-Coded Guide” (see the “ISBA Resources”
sidebar on page 32), every rule commentary begins with an explanation of the similarities and
dierences between the two rules. But recently—for my own personal enlightenment and use, and
with misplaced condence that the task would not be too time-consuming—I created a stand-alone
guide of the dierences. I was surprised to nd more than three dozen examples—a reality that
needs to be shared.
e IRE are based on the FRE. But they are not identical. In some instances, such as for
subsequent remedial measures in FRE 407 or for learned treatises in FRE 803(18), there are
no comparable Illinois codications. Some dierences are major, such as those involving Rules
404(b), 608, 702, and 801(d)(1). Most are minor. But all dierences matter. Anyone serious about
evidence—including all judges and most attorneys—must know the dierences.
The Surprising Number of Differences
Between the Federal and Illinois Rules
of Evidence
The Federal and Illinois Rules of Evidence diverge in dozens of ways worth noting.
BY GINO L. DiVITO
GINO DiVITO, who has been licensed to practice law in Illinois since 1963, has served
as the chief of the Criminal Division of the Cook County State’s Attorney’s Oce, a
trial judge, an appellate court justice, and, since 2001, as a cofounding partner of the
Chicago law rm of Tabet DiVito & Rothstein LLC. DiVito also is a member of the
Supreme Court Committee on Illinois Evidence and the author of the ISBA book “e
Illinois Rules of Evidence: A Color-Coded Guide.”
gdivito@tdrlawrm.com
▼
PRefAce To The JAnuARy 1, 2021 edITIon
is preface is oered as a comprehensive standalone guide for the dierences
between the federal and Illinois rules of evidence. It was originally published in the
Illinois Bar Journal, Vol. 108 #1, January 2020.
2
Dierences are provided below—in the
sequential order of the rules—as summaries of
relevant rules and their dierences.
Preserving a claim of error for appeal
FRE 103(b), in both civil and criminal cases,
does not require a renewal of an objection or
an oer of proof to preserve a claim of error for
appeal once the court rules “denitively” on the
record either before or at trial.
IRE 103(b)(3), in contrast to its federal
counterpart, requires the renewal of an objection
or an oer of proof in civil cases to preserve a
claim of error for appeal, even where the court
rules in limine before or at trial on the record.
But, consistent with
FRE 103(b) regarding criminal
cases,
IRE 103(b)(2) does not require a renewal
of an objection or an oer of proof to preserve
a claim of error for appeal where the court rules
before or at trial on the record.
1
Victim and defendant character traits
FRE 404(a)(2)(B)(ii) provides that, in a criminal
case where a defendant’s oer of an alleged victim’s
relevant character trait is admitted into evidence,
the prosecutor is allowed to also oer evidence of
the defendant’s same trait.
IRE 404(a)(2) does not allow a prosecutor to
oer such evidence in similar circumstances.
Character and propensity
FRE 404(b) prohibits evidence of a crime,
wrong, or other act to “prove a person’s character
in order to show that on a particular occasion the
person acted in accordance with the character”
(i.e., to show the person’s propensity to commit a
crime, wrong, or other act). Note, however, that
FRE 413 allows, for propensity purposes, evidence
of similar crimes in sexual assault cases; FRE
414
allows, for propensity purposes, evidence of
similar crimes in child molestation cases;
FRE
415
allows, for propensity purposes, evidence of
similar acts in civil cases involving sexual assault
or child molestation.
IRE 404(b) provides the same general
prohibition as its federal counterpart, which,
like the federal rule, includes an exception
for common-law allowances that provide
admissibility for specic purposes, such as
for proof of motive or intent, but not to prove
propensity. But, in contrast to the federal rule,
the Illinois rule also allows evidence of other
crimes, wrongs, or acts—as provided in certain
specied statutes
2
—”to show action in conformity
therewith” (i.e., for propensity purposes).
Character and conduct
FRE 405(a) allows a character witness to be
cross-examined on relevant specic instances of
conduct of the person whose character evidence
has been provided when evidence of a person’s
character or character trait is admissible.
IRE 405(a) has not adopted that federal rule
provision. us, in Illinois, unless the character
witness has testied concerning the conduct of a
person where character or a character trait is an
essential element of a charge, claim, or defense
under IRE 405((b)(1), the witness may not
be cross-examined about specic instances of
conduct of the person whose character evidence
has been provided. Illinois’ rejection of the federal
rule’s provision is similar to its rejection of FRE
TAKEAWAYS
>>
Many differences between
Federal and Illinois Rules of
Evidence concern:
• hearsay exceptions;
• challenges to witness
character traits and
credibility; and
• the gatekeeping of
expert witnesses.
__________
1. People v. Denson, 2014 IL 116231, ¶ 23 (providing the
rationale for this distinction in Illinois civil and criminal cases).
2. 725 ILCS 5/115-7.3 (involving sex-related offenses); id.
§ 5/115-7.4 (involving domestic violence-related offenses); id. §
5/115-20 (involving domestic violence-related offenses).
3
IRE 410 also prohibits evidence under
similar circumstances, but it applies
only in criminal cases. And it does not
have a subdivision (b), so it provides
no exceptions to its general rule of
inadmissibility. e Illinois rule is based
on Illinois Supreme Court Rule 402(f).
Other similar sex-related crimes
FRE 413 provides for the admission of
evidence of other similar crimes in sexual
assault cases.
IRE 413 also provides for the admission
of evidence of another sex-related oense
pursuant to a relevant statute
3
but, pursu-
ant to other relevant statutes, it expands
evidence admissibility by providing for
the admission of evidence of another
domestic violence-related oense
4
and for
evidence of the defendant’s conviction for
another domestic violence-related oense
against the same victim.
5
Similar crimes in child
molestation cases
FRE 414 provides that, where a defen-
dant is accused of criminal child molesta-
tion, evidence of his commission of any
other child molestation is admissible.
IRE 413(a) incorporates the provisions of
FRE 414, so a separate rule is unnecessary.
Similar sex-related acts in
criminal cases
FRE 415 allows evidence of similar
sexual assaults or child molestations in
civil cases involving a claim based on
sexual assault or child molestation.
ere is no codied Illinois counter-
part to the federal rule in civil cases.
Attacking witness credibility
FRE 607 allows any party, including the
party that called the witness, to attack the
witness’s credibility.
IRE 607 also allows any party, including
the party that called the witness, to attack
the witness’s credibility. But, contrary to
its federal counterpart and consistent with
Illinois common law, the Illinois rule al-
Subsequent remedial measures
FRE 407 does not allow evidence of
subsequent remedial measures to be
admitted to prove negligence, culpable
conduct, a defect in a product or its design,
or a need for a warning or instruction.
IRE 407 has been reserved. Sadly,
there is no codied Illinois evidence
rule for subsequent remedial measures.
Appellate court opinions, some of which
are conicting, provide the principles to
be applied where subsequent remedial
measures have occurred.
Compromise negotiations
FRE 408(a)(2) prohibits evidence of
conduct or a statement made during
compromise negotiations about the
claim—“except when oered in a criminal
case and when the negotiations related
to a claim by a public oce in the
exercise of its regulatory, investigative, or
enforcement authority.”
IRE 408(a)(2) also prohibits evidence
of conduct or a statement made during
compromise negotiations about the claim,
but it does not provide the exception that
is included within the quotation marks of
the federal rule provided above.
Discussions related to pleas &
plea discussions
FRE 410(a) generally prohibits evidence
of discussions related to pleas, plea
discussions, and related matters where a
guilty plea does not result. It applies in
both civil and criminal cases.
FRE 410(b)
provides exceptions to its general rule of
inadmissibility.
608(b), which allows cross-examination
on specic acts of conduct of a character
witness concerning truthfulness or
untruthfulness.
FRE 405(b) allows a person’s character
or character trait to be proved by relevant
specic instances of the person’s conduct,
when that person’s character or trait is an
essential element of a charge, claim, or
defense.
IRE 405(b)(1) is substantially identical
to
FRE 405(b). But IRE 405(b)(2), which
has no codied federal counterpart, also
allows proof of specic instances of an
alleged victim’s prior violent conduct in
criminal homicide or battery cases “when
the accused raises the theory of self-
defense and there is conicting evidence
as to whether the alleged victim was the
aggressor.”
FOR MY OWN PERSONAL
ENLIGHTENMENT AND USE, AND
WITH MISPLACED CONFIDENCE THAT
THE TASK WOULD NOT BE TOO TIME-
CONSUMING—I CREATED A STAND-
ALONE GUIDE OF THE DIFFERENCES
[BETWEEN THE FEDERAL AND
ILLINOIS RULES OF EVIDENCE]. I
WAS SURPRISED TO FIND MORE
THAN THREE DOZEN EXAMPLES—A
REALITY THAT NEEDS TO BE SHARED.
ISBA RESOURCES >>
• Coming soon: Gino DiVito, The Illinois Rules of Evidence: A Color-Coded
Guide—2020 Edition, ISBA Book Store, isba.org/store.
• Patrick M. Kinnally & Cindy G. Buys, Pleading Guilty in Illinois Courts: A New Judi-
cial Admonition Rule, The Globe (Nov. 2019), law.isba.org/2sPXDQ3.
• Eli Litoff & Kelly Warner, A New Federal Rule of Criminal Procedure Is Likely on the
Way, But Will It Affect Practice in Illinois Federal Courts?, Federal Civil Practice
(May 2018), law.isba.org/37EG9P2.
__________
3. See, e.g., 725 ILCS 5/115-7.3.
4. See 725 ILCS 5/115-7.4.
5. See 725 ILCS 5/115-20.
4
who calls a hostile witness or an adverse
witness, and it adds the allowance for “an
unwilling witness.” But it does not adopt
the federal rule’s allowance of leading
questions for “a witness identied with
an adverse party.” Rather, the Illinois rule
applies the allowance to “an adverse party
or an agent of an adverse party,” thus
rejecting the federal rule’s broad inclusion
of “a witness identied with an adverse
party” while also conforming with section
2-1102 of the Code of Civil Procedure.
6
Using a writing to refresh a
witness’s memory
FRE 612(a)(2) provides that, where a
witness uses a writing to refresh his or her
memory during or before testifying, the
adverse party is entitled to have the writ-
ing produced at the hearings, to inspect
it, to cross-examine the witness about it,
and to introduce in evidence any portion
that relates to the witness’s testimony. But
the rule adds a condition that applies only
to witnesses who refresh their memories
before testifying “if the court decides that
justice requires the party to have those
options.” at condition does not apply
to witnesses who refresh their memories
while testifying.
IRE 612(2) provides the same entitle-
ments to the adverse party concerning
witnesses who use a writing to refresh
their memories during or before testify-
ing. But the Illinois rule does not contain
the quoted portion of the federal rule
given above. us, the Illinois rule does
not require the condition that the court
exercise discretion for allowing the op-
tions available to the opposing party for
witnesses who refresh their memories
before testifying.
Prior consistent statements
IRE 613(c), which addresses the ad-
mission of evidence of prior consistent
statements under certain circumstances,
not only does not exist in the federal rule,
it is inconsistent with FRE 801(d)(1)(B)
(i), which treats such statements as “not
hearsay.” e federal rule and its Illinois
is later. But the evidence of conviction
is subject to discretionary admission
by the court aer that time period if its
probative value substantially outweighs its
prejudicial eect and the proponent gives
an adverse party reasonable written notice
of its intent to use it.
FRE 609(d) allows the admission of
a juvenile adjudication, under certain
conditions, if it is oered only in a
criminal case and the adjudication was of
a witness other than the defendant.
IRE 609(a) also allows evidence of a
criminal conviction, for impeachment
purposes, for an oense punishable by
death or imprisonment for more than
one year and for an oense involving a
dishonest act or false statement. But, in
contrast to the federal rule, such evidence
is subject to the balancing test for the
admission of evidence provided by Rule
403 in all cases. us, the balancing test
provided by Rule 403 is applied to a mere
witness and to a defendant in a criminal
case, and that test also is applied to
convictions involving a dishonest act or
false statement.
IRE 609(b) also denies admission of
the evidence of a criminal conviction if
more than 10 years have passed since
the witness’s conviction or release
from connement for the conviction,
whichever is later. But, unlike the federal
rule, it has no provision for allowing the
discretionary admission of convictions
that exceed that time period.
IRE 609(d) generally prohibits the
admission of evidence of juvenile
adjudications, but it allows judicial
discretion to admit a juvenile adjudication
of a witness other than the accused, in
both criminal and civil cases.
Leading questions: adverse
parties & hostile witnesses
FRE 611(c) provides that the court
should allow leading questions “when a
party calls a hostile witness, an adverse
party, or a witness identied with an
adverse party.”
IRE 611(c) also provides for the
allowance of leading questions for a party
lows the party calling the witness to attack
the witness’s credibility only by showing
armative damage—except for statements
that are substantively admissible under
IRE 801(d)(1)(A), 801(d)(1)(B), 801(d)
(2), or 803.
Cross-examining to determine
character for truthfulness
FRE 608(b) allows a witness to be
cross-examined on extrinsic evidence
to prove specic instances of conduct of
the testifying witness or another witness
to attack or support the character for
truthfulness of the testifying witness or
other witness.
IRE 608 has not adopted the federal
rule’s subdivision (b). Consistent with
Illinois common law, the Illinois rule does
not allow cross-examination on specic
instances of conduct to attack or support a
witness’s character for truthfulness.
Admission of past criminal
convictions
FRE 609(a) allows evidence of a
criminal conviction, for impeachment
purposes, for an oense punishable by
death or imprisonment for more than
one year. Where the witness is not the
defendant in a criminal case, it makes
the admission of the conviction subject
to Rule 403 (i.e., the evidence is excluded
if its probative value is substantially
outweighed by its unfair prejudicial eect).
But for a defendant in a criminal case who
was convicted of such oenses, the test for
admission of evidence of the conviction is
not determined by the Rule 403 balancing
test, but by the more protective test of
whether “the probative value of the
evidence outweighs its prejudicial eect to
that defendant.” For any crime involving
a dishonest act or false statement, there
is no balancing test, and the evidence of
conviction of any witness for such oenses
must be admitted.
FRE 609(b) denies admission of the
evidence of a criminal conviction if
more than 10 years have passed since
the witness’s conviction or release from
connement for the conviction, whichever
__________
6. 735 ILCS 5/2-1102.
5
prior statement that is inconsistent with
the witness’s testimony, where the prior
inconsistent statement “was given under
penalty of perjury at a trial, hearing, or
other proceeding or in a deposition.”
IRE 801(d)(1)(A)(i) also allows substan-
tive admissibility of such statements, but
only in criminal cases. e rule does not
allow substantive admissibility of such
inconsistent statements in civil cases.
IRE 801(d)(1)(A)(ii) expands its federal
counterpart—in criminal cases, not civil
cases—by allowing the substantive admis-
sibility of a witness’s prior statement that is
inconsistent with the witness’s testimony
at the trial or hearing and “narrates, de-
scribes, or explains an event or condition
of which the declarant [who also is the
witness] had personal knowledge, and:
(a.) the statement is proved to have been
written or signed by the declarant; or
(b.) the declarant acknowledged under
oath the making of the statement either in
the declarant’s testimony at the hearing or
trial in which the admission into evidence
of the prior statement is being sought or at
a trial, hearing, or other proceeding, or in
a deposition; or
(c.) the statement is proved to have been
recorded by a tape recorder, videotape
recording, or any other similar electronic
means of sound recording.
FRE 801(d)(1)(B) allows, in both civil and
criminal cases, substantive admissibility,
as “not hearsay,” of a witness’s prior state-
ment that is consistent with the witness’s
testimony and the statement is oered:
(i) to rebut an express or implied charge
that the declarant recently fabricated it or
acted from a recent improper inuence or
motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility
as a witness when attacked on another
ground.
IRE 613(c), as indicated supra, is a response
to FRE 801(d)(1)(B)(i). Illinois has not
adopted either FRE 801(d)(1)(B)(i) or (ii).
us, in Illinois prior consistent statements
of a witness are hearsay and are not subject
to a hearsay exception or exclusion. IRE
613(c)—the counterpart to FRE 801(d)(1)
determine whether the inadmissible facts
or data should be disclosed to the jury.
Because that federal balancing test has not
been adopted, the appropriate balancing
test for admission in Illinois is IRE 403,
which prohibits disclosure to the jury only
if the probative value of the facts or data
in helping the jury evaluate the opinion is
substantially outweighed by their unfair
prejudicial eect.
Expert testimony: defendant’s
mental state
FRE 704, which allows admissibility of
lay and expert opinions on an ultimate
issue, adds a subdivision, FRE 704(b),
to create an exception that makes
inadmissible in a criminal case an expert
witness’s opinion “about whether the
defendant did or did not have a mental
state or condition that constitutes an
element of the crime charged or of a
defense.”
IRE 704 is identical to its federal coun-
terpart, but it has no 704(b) exception. Illi-
nois common law allows an expert witness
to testify to the mental state or condition
of a criminal defendant.
Court-appointed expert
witnesses
FRE 706 provides information about
the appointment of expert witnesses,
including the appointment process, the
expert’s role, the expert’s compensation,
the court’s authorizing disclosure to the
jury that the court appointed the expert,
and that the rule does not limit the party
in calling its own expert.
Illinois has not adopted the federal
rule, nor has it codied any evidence rule
on the subject. An Illinois Supreme Court
rule, such as Rule 215(d) concerning the
appointment of an impartial medical
examiner, and Illinois statutes provide
for the appointment of experts in various
circumstances.
Substantive admissibility: prior
statements
FRE 801(d)(1)(A) provides, in both civil
and criminal cases, substantive admis-
sibility as “not hearsay” of a witness’s
counterpart are addressed infra in the
discussion that leads with the federal rule.
Gatekeeping expert testimony
FRE 702 incorporates what is referred
to as the Daubert test.
7
It makes the trial
court the gatekeeper for the admission of
scientic expert witness testimony (later
expanded to all expert witness testimo-
ny
8
), based on the criteria it provides in
FRE 702(a), (b), (c), and (d).
IRE 702 adopts the general principles
of the rst paragraph of FRE 702 and FRE
702(a) concerning the qualications for
a witness to provide expert opinion testi-
mony, but it does not adopt the remainder
of the federal rule (FRE 702(b), (c), and
(d)), thus denying gatekeeper status to the
trial court. And it specically requires, in
the rule and in its accompanying com-
mittee comment, application of the Frye
test,
9
which provides that where an expert
witness testies to an opinion based on a
new or novel scientic methodology or
principle, the proponent of the opinion
is required to show that “the methodol-
ogy or scientic principle on which the
opinion is based is suciently established
to have gained general acceptance in the
particular eld in which it belongs.” Ex-
cept for its adoption of the rst paragraph
of FRE 702 and FRE 702(a), the Illinois
rule provides no guidance for admission
of expert testimony other than that for a
new or novel scientic methodology or
principle.
Expert testimony: facts & data
FRE 703 allows facts or data, which
would otherwise be inadmissible as
evidence but are reasonably relied upon
by an expert witness in forming an
opinion, to be disclosed to the jury “only
if their probative value in helping the
jury evaluate the opinion substantially
outweighs their prejudicial eect.”
IRE 703 also allows otherwise inad-
missible facts or data reasonably relied
upon by an expert witness in forming an
opinion to be disclosed to the jury, but it
does not use the balancing test provided
by the federal rule in the quote above to
__________
7. See Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 379 (1993).
8. Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999).
9. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
6
Hearsay: business, medical, &
public records
IRE 803(6), generally referred to as
the business records exception to the
hearsay rule, is identical in substance
to FRE 803(6), except that, contrary to
the federal rule and consistent with a
relevant Illinois statute,
10
medical records
in criminal cases are excluded from the
hearsay exception.
IRE 803(8) is the public records
exception to the hearsay rule. It diers
from FRE 803(8) in excluding police
accident reports, consistent with Illinois
Supreme Court Rule 236(b), and medical
records in a criminal case, consistent with
725 ILCS 5/115-5(c)(1).
Hearsay: learned treatise
exception
FRE 803(18) is the learned treatise
exception to the hearsay rule.
IRE 803(18) has been reserved. Illinois
has not accepted this exception to the
hearsay rule, nor has it codied a rule
related to learned treatises. Consistent with
Illinois common law, learned treatises are
not substantively admissible through either
direct examination or cross-examination.
e absence of a codied rule on learned
treatises reportedly results in dierences
in trial courts throughout Illinois as to
whether and how juries should be in-
formed of them.
Hearsay: receipts & paid-bill
exceptions
IRE 803(24) provides a hearsay
exception for a receipt or a paid bill. It
makes a receipt or paid bill “prima facie
evidence of the fact of payment and as
prima facie evidence that the charge was
reasonable.” ere is no FRE 803(24). A
federal rule carrying that designation,
which previously addressed other
exceptions to the hearsay rule, has been
transferred to FRE 807, which is the
“Residual Exception” to the hearsay rule.
ere is no codied federal evidence rule
that addresses the hearsay exception IRE
803(24) provides.
Hearsay: medical diagnosis &
treatment exceptions
FRE 803(4) allows, as a hearsay
exception, the admission of statements
made for the purposes of medical
diagnosis or treatment.
IRE 803(4)(A) also allows, as a hearsay
exception, the admission of statements
made for the purpose of treatment, but
it allows the admission of statements of
medical diagnosis only in contemplation
of treatment. e rule specically makes
inadmissible “statements made to a
health care provider consulted solely for
the purpose of preparing for litigation
or obtaining testimony for trial,” but
it excepts Rule 703’s allowance for
information reasonably relied upon by an
expert witness.
IRE 803(4)(B) adds a subdivision to the
Illinois rule that gives broader admis-
sibility to medical diagnosis than that
provided by subdivision (A). It allows, in
the prosecution of oenses specically de-
ned by statutes related to sexual oenses,
the admission of “statements made by the
victim to medical personnel for purposes
of medical diagnosis or treatment includ-
ing descriptions of the cause of symptoms,
pain or sensations, or the inception or
general character of the cause or external
source thereof insofar as reasonably perti-
nent to diagnosis or treatment.”
Hearsay: “recorded recollection”
exception
FRE 803(5) provides the “recorded
recollection” exception to the hearsay rule.
It provides that, if admitted, “the record
may be read into evidence but may be
received as an exhibit only if oered by an
adverse party.”
IRE 803(5) also addresses the recorded
recollection exception. It does not con-
tain the provision quoted above. us,
consistent with Illinois common law, the
recorded recollection report may be of-
fered as an exhibit even by the proponent
of the evidence.
(B)(i)—adopts Illinois common law that
allows, in both civil and criminal cases, the
admission of prior consistent statements by
a witness where they are “oered to rebut
an express or implied charge that (i) the
witness acted from an improper inuence
or motive to testify falsely, if that inuence
or motive did not exist when the statement
was made; or (ii) the witness’s testimony
was recently fabricated, if the statement
was made before the alleged fabrication
occurred.” As IRE 613(c) makes clear, such
statements are admitted only for rehabilita-
tive purposes and not substantively as a
hearsay exclusion or exception.
Substantive admissibility:
witness’s identication
FRE 801(d)(1)(C) allows, in civil and
criminal cases, the substantive admission
of a witness’s identication of “a person as
someone the declarant perceived earlier.”
IRE 801(d)(1)(B) also allows the substan-
tive admission of a witness’s “identica-
tion of a person made aer perceiving the
person.” But the Illinois rule applies only
in criminal cases. It does not apply in civil
cases.
Substantive admissibility:
opposing party’s statements
FRE 801(d)(2) provides for and lists
the opposing party’s statements that are
admissible substantively.
IRE 801(d)(2) lists the same statements
of a party opponent that are admissible
substantively, but it provides an additional
subdivision (F): “a statement by a person,
or a person on behalf of an entity, in
privity with the party or jointly interested
with the party.”
“Present sense impression”
statements
FRE 803(1) provides as an exception to
the hearsay rule a “present sense impres-
sion” statement, which is a “statement
describing or explaining an event or con-
dition, made while or immediately aer
the declarant perceived it.”
IRE 803(1) is reserved. Illinois has not
adopted the “present sense impression”
exception to the hearsay rule.
__________
10. See 725 ILCS 5/115-5(c)(1).
Illinois has not adopted FRE 807.
Nevertheless, despite the lack of a codied
evidence rule, there are numerous statutes
in the Code of Criminal Procedure of
1963 and in the Code of Civil Procedure
that provide equivalent residual hearsay
exceptions. In criminal cases, application
of those statutes presents issues related
to the defendant’s constitutional right to
confrontation.
Applying evidence rules when
revoking probation
FRE 1101(d)(3) provides that the rules
of evidence do not apply in proceedings
“revoking probation.”
IRE 1101(b)(3) does not include an
exception for the rules of evidence for
revoking probation. In contrast to federal
proceedings, Illinois common law gener-
ally requires the application of evidence
rules where the revocation of probation
or conditional discharge is based on an
alleged criminal oense.
homicide, meaning that, in contrast to the
federal rule in civil cases, the declarant
must have died for the statement to be
admitted.
Hearsay: sufcient notice and
residual exceptions
FRE 807 provides a residual exception
to the hearsay rule. As amended
eective Dec. 1, 2019, the rule provides
that, if sucient notice is given to the
opposing party, “a hearsay statement is
not excluded by the rule against hearsay
even if the statement is not admissible
under a hearsay exception in Rule 803 or
804”—if two conditions are met. e two
conditions are:
(1) the statement is supported by sucient
guarantees of trustworthiness—aer
considering the totality of circumstances
under which it was made and evidence, if
any, corroborating the statement; and
(2) it is more probative on the point for
which it is oered than any other evidence
that the proponent can obtain through
reasonable eorts.
Hearsay: former testimony
exception
IRE 804(b)(1) is the “former testimony”
exception to the hearsay rule. It diers
from its federal counterpart based on
Illinois’ distinction between discovery
and evidence depositions as they relate to
admissibility, and its reference to Illinois
Supreme Court Rule 212(a)(5), which
allows admission of discovery depositions
into evidence in limited circumstances.
Hearsay: dying declaration
FRE 804(b)(2), commonly referred to
as the “dying declaration” exception to
the hearsay rule, makes admissible, in
a prosecution for homicide or in a civil
case, a statement concerning the cause or
circumstances of the death of a declarant
who believes his or her death to be
imminent.
IRE 804(b)(2) is identical to its federal
counterpart, except in Illinois the hearsay
exception does not apply in civil cases.
It applies only in a prosecution for a
Reprinted with permission of the Illinois Bar Journal,
Vol. 108 #1, January 2020.
Copyright by the Illinois State Bar Association.
isba.org
7
xvi
xvii
PRefAce To The JAnuARy 1, 2016 edITIon
e three columns are gone. e two-column format returns. Here’s why.
When this guide was introduced in December 2010, it featured two columns. One
contained the then-current federal evidence rules; the other had the newly codied
Illinois evidence rules with the eective date of January 1, 2011. is format simplied
comparison of the two sets of the then-current rules—rules that had identical numbers
and formatting, and that were often substantively identical and frequently employed
exactly the same language.
rough side-by-side comparison and the use of color-highlighting, the frequent
similarities and the occasional dierences in the two sets of rules were easily illustrated.
en, just one year later—on December 1, 2011—it was obvious that a change
was required. at was the eective date of the amendments to the Federal Rules of
Evidence—the date that introduced amendments made only for stylistic purposes and
with no intended substantive eect, but with signicant changes in titles of rules and
subdivisions, in language, and in formatting. Greater clarity resulted.
For this reason, recent editions of the guide have featured three columns. To provide
continued access to the amended federal evidence rules, they were placed in their
own separate column. In the other two columns, side-by-side comparison of the pre-
amended federal rules and the Illinois rules was retained. But this resulted in three
narrow columns—with the more lengthy rules streaming for an undue length vertically
down the page.
More signicant, by this time it was clear that there was little interest in a comparison
of the Illinois rules with the pre-amended (and otherwise mostly irrelevant) federal
rules. Neither those familiar nor those unfamiliar with the federal evidence rules had
any interest in the no-longer-current rules.
In short, having the Illinois rules side-by-side with the current federal rules had
become more important than a side-by-side comparison of the Illinois rules with the
now irrelevant pre-amended federal rules. at was especially so because the author’s
commentaries, which already explained dierences and similarities, could satisfactorily
be used to explain what side-by-side placement had illustrated.
So, starting with this edition of the guide, the following changes have been
implemented:
(1) e current Federal Rules of Evidence are placed in the left column, side-by-side
with the column containing the current Illinois Rules of Evidence. e pre-December
1, 2011 federal evidence rules that served as the substantive and formatting model
xviii
for the Illinois rules, are no longer provided. is ensures ready access to the current
evidence rules—in a two-column format that allows use in federal and state courts, and
should facilitate both easy use and comparison.
(2) e colors used in the text within the columns containing the rules— previously
used to indicate substantive and non-substantive dierences and the non-adoption of
certain federal rules or parts of them—have been eliminated, resulting in clutter-free
text in the columns containing both sets of rules.
(3) In lieu of color-coding within the rules themselves, in the very rst part of the
author’s commentary on the Illinois evidence rules (often in the very rst sentence or
at least in the rst paragraph), the similarities in and the dierences between the two
sets of rules are explained, the few substantive dierences between the codied Illinois
rules and rules that had their origin in Illinois common law are discussed, and the non-
adoption of certain federal rules (or portions of them) is addressed.
(4) Except for two, the rules are provided at the top of a page, in their entirety—
with all of their subdivisions. e two exceptions are the lengthy rules that provide
hearsay exceptions, Rules 803 and 804. e various subdivisions of these two rules are
best considered separately for commentary purposes.
(5) Color is used—only as background—in three instances: pink is used to identify
the ocial Committee Comments that accompany the Illinois rules; yellow is used
to indicate the author’s commentaries on the Illinois evidence rules; and blue is used
for the author’s commentaries on the federal evidence rules. e use of yellow and
blue as background color in the author’s commentaries should serve to distinguish
comments on the federal and the Illinois rules from each other, while distinguishing
both commentaries from the rules themselves. Also, the addition of headings in the
lengthier author’s commentaries should enable easy navigation to relevant topics.
My partner Daniel Konieczny dedicated many hours and much-needed expertise
to the dicult task of formatting these pages. I am deeply grateful for his signicant
contributions.
As always, I invite reader-input concerning every aspect of the guide: substantive and
minor errors; formatting; relevant statutes, rules, or cases that have been overlooked;
and any other matter related to accuracy and increased utility.
After all, this guide continues to be—like the rules of evidence and the decisions
that apply them—a work always in progress.
Gino L. DiVito
Tabet DiVito & Rothstein LLC
January 1, 2016
xix
PRefAce To The decembeR 2010 edITIon
On November 24, 2008, the Illinois Supreme Court announced the appointment of
a broad spectrum of judges, lawyers, law professors, and legislators to serve on its newly
created Special Supreme Court Committee on Illinois Evidence. e Court directed
the Committee to draft a comprehensive code of evidence for the state based upon
Illinois statutes, rules, and common law. After a year-long process, the Committee
presented the Court its proposals for the codication of Illinois evidence rules.
e Court then invited written comments from the bar and scheduled public
hearings for oral presentations in Chicago and Springeld in May 2010. After
considering both the written comments and those made at the public hearings, the
Committee reconvened to revise some of its initial proposals and to add comments to a
few individual rules as well as a general commentary. ese were then submitted to the
Court. On September 27, 2010, the Court approved and promulgated the Committee’s
proposals, setting January 1, 2011 as the eective date for the codied rules. Referred
to in Rule 1102 as the Illinois Rules of Evidence, the new rules are modeled on and
similar to, but not wholly identical to, the Federal Rules of Evidence. ey contain the
same numbering system and address evidence issues in similar fashion.
is guide begins with the Committee’s general commentary to the rules and provides
all of the newly adopted rules – the Illinois Rules of Evidence (IRE) – including the
individual comments that the Committee provided for ve of the rules. It presents
the new rules in a side-by-side comparison with the Federal Rules of Evidence (FRE),
along with additional relevant commentary. e guide’s goals are to: (1) enable a direct
comparison of the two evidence rules; (2) oer commentary concerning the new rules,
with relevant case and statutory citations and explanations; (3) point out substantive
and non-substantive dierences between the federal and the Illinois rules; (4) indicate
explicit rejection of certain federal rules or portions of them; and (5) highlight
substantive changes from former Illinois evidence law. To achieve these objectives, the
guide employs colored highlights:
• Yellow is used for the author’s commentary, in what is a work always in progress.
• Pink is used for comments provided by the Committee for ve of the rules.
• Blue underlining is used to indicate both substantive and non-substantive
dierences between the FRE and the IRE that do not represent a change in
Illinois law.
• Red strikethrough is used to indicate a federal rule or a portion of it that was not
adopted. e strikethrough reects non-adoption, not deletion.
• Green is used to indicate a substantive change from prior Illinois law, regardless
of whether there is a dierence between the FRE and the IRE. As stated above,
mere dierences between the FRE and the IRE – even those that are substantive
but do not reect a change in Illinois law – are shown with blue underlining.
xx
Although the guide is intended to be viewed in color, a reader who does not have a
color copy nevertheless will be able to discern the various types of highlighting from
the context or style of the highlight. For example:
• Commentary is in a different typeface, and the author’s commentary always is preceded by an
appropriate title to distinguish it from the committee commentary.
• Rule dierences not representing a change in Illinois law always are underlined.
• Federal rules that were not adopted always are marked with strikethrough.
• Substantive changes in Illinois law are the only shaded text in the Illinois rules
themselves.
us, the guide can be utilized even if printed in grayscale.
Every eort has been made to ensure that the rules and commentary in the guide
are current as of the date stated below and as of the date of the last revision shown on
the cover page. Note that there are minor variations in the various published editions
of the Federal Rules of Evidence, mostly in the use of upper or lower case letters in
subheadings. is guide follows the Federal Rules of Evidence printed for the use of the
Committee on the Judiciary of the United States House of Representatives and dated
December 1, 2009, which is currently available on the website of the United States
federal courts.
In response to reader feedback, I have added appendices containing the full text of
related statutes and Supreme Court Rules that are discussed in the commentary.
e guide is intended to assist legal practitioners to understand and apply the new
rules. It is not a substitute for legal or other professional services. If legal or other
professional assistance is required, the services of a competent attorney or other
professional should be sought.
My partner Daniel Konieczny dedicated many hours and much-needed expertise
to the dicult task of formatting these pages. I am deeply grateful for his signicant
contributions.
As stated above, my commentary is a work always in progress. For that reason, I
welcome any comments related to the guide’s accuracy and utility.
Gino L. DiVito
Tabet DiVito & Rothstein LLC
December 23, 2010
xxi
xxii
ILLINOIS RULES OF EVIDENCE
Committee Commentary
On January 1, 2011, by order of the Illinois Supreme Court, the Illinois Rules of
Evidence will govern proceedings in the courts of Illinois except as otherwise
provided in Rule 1101.
On November 24, 2008, the Illinois Supreme Court created the Special Supreme
Court Committee on Illinois Evidence (Committee) and charged it with codifying the
law of evidence in the state of Illinois.
Currently, Illinois rules of evidence are dispersed throughout case law, statutes,
and Illinois Supreme Court rules, requiring that they be researched and ascertained
from a number of sources. Trial practice requires that the most frequently used rules
of evidence be readily accessible, preferably in an authoritative form. The
Committee believes that having all of the basic rules of evidence in one easily
accessible, authoritative source will substantially increase the efficiency of the trial
process as well as expedite the resolution of cases on trial for the benefit of the
practicing bar, the judiciary, and the litigants involved. The Committee further
believes that the codification and promulgation of the Illinois Rules of Evidence will
serve to improve the trial process itself as well as the quality of justice in Illinois.
It is important to note that the Illinois Rules of Evidence are not intended to
abrogate or supersede any current statutory rules of evidence. The Committee sought
to avoid in all instances affecting the validity of any existing statutes promulgated
by the Illinois legislature. The Illinois Rules of Evidence are not intended to preclude
the Illinois legislature from acting in the future with respect to the law of evidence
in a manner that will not be in conflict with the Illinois Rules of Evidence, as
reflected in Rule 101.
Based upon the charge and mandate to the Committee, and consistent with the
above considerations, the Committee drafted the Illinois Rules of Evidence in
accordance with the following principles:
(1) Codification: With the exception of the two areas discussed below under
“Recommendations,” the Committee incorporated into the Illinois Rules of Evidence
the current law of evidence in Illinois whenever the Illinois Supreme Court or the
Illinois Appellate Court had clearly spoken on a principle of evidentiary law within
the last 50 or so years. Thus, Rule 702 retains the Frye standard for expert opinion
evidence pursuant to the holding in Donaldson v. Central Illinois Public Service Co.,
199 Ill. 2d 63, 767 N.E.2d 314 (2002). The Committee reserved Rule 407, related to
subsequent remedial measures, because Appellate Court opinions are sufficiently in
conflict concerning a core issue that is now under review by the Supreme Court.
Also reserved are Rules 803(1) and 803(18), because Illinois common law does not
recognize either a present sense impression or a learned treatise hearsay exception.
(2) Statute Validity: The Committee believes it avoided affecting the validity
of existing statutes promulgated by the Illinois legislature. There is a possible
conflict between Rule 609(d) and section 5–150(1)(c) of the Juvenile Court Act (705
ILCS 405/5–150(1)(c)) with respect to the use of juvenile adjudications for
impeachment purposes. That possible conflict, however, is not the result of
promulgation of Rule 609(d) because that rule simply codifies the Illinois Supreme
Court’s adoption of the 1971 draft of Fed. R. Evid. 609 in People v. Montgomery, 47
Ill.2d 510, 268 N.E.2d 695 (1971). As noted in the Comment to Rule 609(d), the
present codification is not intended to resolve the issue concerning the effect of the
statute. Moreover, the Illinois Rules of Evidence permit the Illinois legislature to act
in the future with respect to the law of evidence as long as the particular legislative
enactment is not in conflict with an Illinois Supreme Court rule or an Illinois
Supreme Court decision. See Ill. R. Evid. 101.
(3) Modernization: Where there was no conflict with statutes or recent Illinois
Supreme Court or Illinois Appellate Court decisions, and where it was determined
to be beneficial and uniformly or almost uniformly accepted elsewhere, the
Committee incorporated into the Illinois Rules of Evidence uncontroversial
developments with respect to the law of evidence as reflected in the Federal Rules
of Evidence and the 44 surveyed jurisdictions. The 14 instances of modernization of
note are as follows:
(1) Rule 106. Remainder of or Related Writings or Recorded Statements.
Rule 106 permits the admission contemporaneously of any other part
of a writing or recording or any other writing or recording which “ought
in fairness” be considered at the same time. Prior Illinois law appears to
have limited the concept of completeness to other parts of the same
writing or recording or an addendum thereto. The “ought in fairness”
requirement allows admissibility of statements made under separate
circumstances.
(2) Rule 406. Habit; Routine Practice.
Rule 406 confirms the clear direction of prior Illinois law that
evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence
of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or
routine practice.
(3) Rule 408. Compromise and Offers to Compromise.
Prior Illinois law did not preclude admissibility of statements made
in compromise negotiations unless stated hypothetically. Because they
were considered a trap for the unwary, Rule 408 makes such statements
inadmissible without requiring the presence of qualifying language.
-2-
(4) Rule 613(a). Examining Witness Concerning Prior Statement.
Rule 613(a) provides that a prior inconsistent statement need not be
shown to a witness prior to cross-examination thereon. Illinois Central
Railroad v. Wade, 206 Ill. 523, 69 N.E. 565 (1903), was to the contrary.
(5) Rule 801(d). Statements Which Are Not Hearsay.
Rule 801(d)(1)(A) codifies an Illinois statute (725 ILCS 5/115–10.1)
that applies only in criminal cases. It makes admissible as “not hearsay”
(rather than as a hearsay exception) a prior inconsistent statement of a
declarant who testifies at a trial or a hearing and is subject to cross-
examination, when the prior inconsistent statement was given under oath
at a trial, hearing, or other proceeding, or in a deposition, or under other
specified circumstances. The rule does not apply in civil cases. Rule
801(d)(1)(B) also codifies an Illinois statute (725 ILCS 5/115–12). It
makes admissible as “not hearsay” a declarant’s prior statement of
identification of a person made after perceiving that person, when the
declarant testifies at a trial or hearing in a criminal case and is subject to
cross-examination concerning the statement. Rule 801(d)(2) provides
substantive admissibility, as “not hearsay,” for admissions of a party-
opponent.
(6) Rule 801(d)(2)(D). Statement by a Party’s Agent or Servant.
Rule 801(d)(2)(D) confirms the clear direction of prior Illinois law
that a statement by a party’s agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship, constitutes an admission of a party-opponent.
(7) Rule 803(13). Family Records.
The requirement that the declarant be unavailable and that the
statement be made before the controversy or a motive to misrepresent
arose, Sugrue v. Crilley, 329 Ill. 458, 160 N.E. 847 (1928), have been
eliminated.
(8) Rule 803(14), (15), (19), (20) and (23).
With respect to records of or statements in documents affecting an
interest in property, reputation concerning personal or family history, and
concerning boundaries or general history, and judgments as to personal,
family or general history or boundaries, Illinois law in each area was
sparse or nonexistent.
(9) Rules 803(16) and 901(b)(8). Statements in Ancient Documents.
The 30-year limitation to real property, Reuter v. Stuckart, 181 Ill.
529, 54 N.E. 1014 (1899), is relaxed in favor of 20 years without subject
matter restriction.
-3-
(10) Rule 804(b)(3). Statement Against Interest.
Rule 804(b)(3) makes applicable to the prosecution as well as the
defense the requirement that in a criminal case a statement tending to
expose the declarant to criminal liability is not admissible as a hearsay
exception unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
(11) Rule 806. Attacking and Supporting Credibility of Declarant.
Rule 806 dispenses with the requirement of an opportunity to deny
or explain an inconsistent statement or conduct of an out-of-court
declarant under all circumstances when a hearsay statement is involved.
Whether Illinois law had already dispensed with the requirement with
respect to a deposition was unclear.
(12) Rule 902(11). Certified Records of Regularly Conducted Activity.
Self-authentication of business records is provided by Rule 902(11),
following the model of Fed. R. Evid. 902(11) and 902(12) and 18 U.S.C.
3505.
(13) Rule 1004. Admissibility of Other Evidence of Contents.
Rule 1004 does not recognize degrees of secondary evidence
previously recognized in Illinois. Illinois Land & Loan Co. v. Bonner, 75
Ill. 315 (1874). In addition, it is no longer necessary to show that
reasonable efforts were employed beyond available judicial process or
procedure to obtain an original possessed by a third party. Prussing v.
Jackson, 208 Ill. 85, 69 N.E. 771 (1904).
(14) Rule 1007. Testimony or Written Admission of Party.
The Rule 1007 provision that testimony or a written admission may
be employed to prove the contents of a document appears never before
to have been the law in Illinois. Bryan v. Smith, 3 Ill. 47 (1839).
(4) Recommendations: The Committee recommended to the Illinois Supreme
Court a limited number of changes to Illinois evidence law (1) where the
particularized evidentiary principle was neither addressed by statute nor specifically
addressed in a comprehensive manner within recent history by the Illinois Supreme
Court, and (2) where prior Illinois law simply did not properly reflect evidentiary
policy considerations or raised practical application problems when considered in
light of modern developments and evidence rules adopted elsewhere with respect to
the identical issue. The Committee identified, and the Illinois Supreme Court
approved, recommendations in only two areas:
(a) Opinion testimony is added to reputation testimony as a method of proof
in Rule 405, when character evidence is admissible, and in Rule 608 with respect
to character for truthfulness:
-4-
Rule 405.
METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof may
be made by testimony as to reputation, or by testimony in the form of
an opinion.
(b) Specific Instances of Conduct.
(1) In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense,
proof may also be made of specific instances of that person’s
conduct; and
(2) In criminal homicide or battery cases when the
accused raises the theory of self-defense and there is
conflicting evidence as to whether the alleged victim was the
aggressor, proof may also be made of specific instances of the
alleged victim’s prior violent conduct.
Rule 608.
EVIDENCE OF CHARACTER WITNESS
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness, and (2) evidence of truthful character
is admissible only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence or otherwise.
(b) Rule 803(3) eliminates the requirements currently existing in Illinois law,
that do not exist in any other jurisdiction, with respect to statements of then
existing mental, emotional, or physical condition, that the statement be made by
a declarant found unavailable to testify, and that the trial court find that there is
a “reasonable probability” that the statement is truthful:
RULE 803.
HEARSAY EXCEPTIONS;
AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
-5-
* * *
(3) Then Existing Mental, Emotional, or Physical
Condition. A statement of the declarant's then existing state
of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including:
(A) a statement of memory or belief to prove the
fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of
declarant's will; or
(B) a statement of declarant’s then existing state
of mind, emotion, sensation, or physical condition to
prove the state of mind, emotion, sensation, or
physical condition of another declarant at that time or
at any other time when such state of the other
declarant is an issue in the action.
The initial reference in Illinois to “unavailability” and “reasonable probability”
occurred in People v. Reddock, 13 Ill. App. 3d 296, 300 N.E.2d 31 (1973), adopting
the position taken by the North Carolina Supreme Court in State v. Vestal, 278 N.C.
561, 180 S.E.2d 755 (1971), when dealing with statements of intent by a declarant
to prove conduct by the declarant consistent with that intent. Subsequent cases
simply incorporated the two qualifications without analysis, evaluation, critique, or
discussion. No reference has been made to the fact that the two requirements were
initially adopted solely to deal with the Mutual Life Ins. v. Hillmon, 145 U.S. 285
(1892), issue as to whether a statement of an out of court declarant expressing her
intent to perform a future act was admissible as evidence to prove the doing of the
intended act. Interestingly, the North Carolina version of Rule 803(3) in the North
Carolina Rules of Evidence is in substance the same as Rule 803(3), i.e., neither a
requirement of “unavailability” nor “reasonable probability” is included.
Rule 803(3) permits admissibility of declarations of intent to do an act as
evidence to establish intent and as evidence to prove the doing of the intended act
regardless of the availability of the declarant and without the court finding a
reasonable probability that the statement is truthful. Consistent with prior Illinois
law, Rule 803(3)(B) provides that the hearsay exception for admissibility of a
statement of intent as tending to prove the doing of the act intended applies only to
the statements of intent by a declarant to prove her future conduct, not the future
conduct of another person.
(5) Structural Change: A hearsay exception in Illinois with respect to both
business and public records is recognized in civil cases by Illinois Supreme Court
Rule 236, excluding police accident reports, and in criminal cases by section 115 of
-6-
the Code of Criminal Procedure (725 ILCS 5/115), excluding medical records and
police investigative records. The Illinois Rules of Evidence in Rule 803(6), records
of regularly conducted activity (i.e., business records), and in Rule 803(8), public
records and reports, while retaining the exclusions described above, removes the
difference between civil and criminal business and public records in favor of the
traditional and otherwise uniformly accepted division between business records, Rule
803(6), and public records and reports, Rule 803(8), both applicable in civil and
criminal cases.
RULE 803(6)-(10).
HEARSAY EXCEPTIONS;
AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
* * *
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness, or by
certification that complies with Rule 902(11), unless the
source of information or the method or circumstances of
preparation indicate lack of trustworthiness, but not including
in criminal cases medical records. The term "business" as
used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance
With the Provisions of Paragraph (6). Evidence that a
matter is not included in the memoranda reports, records, or
data compilations, in any form, kept in accordance with the
provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record, or data compilation
was regularly made and preserved, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
-7-
(8) Public records and reports. Records, reports,
statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the
office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to
report, excluding, however, police accident reports and in
criminal cases medical records and matters observed by
police officers and other law enforcement personnel, unless
the sources of information or other circumstances indicate
lack of trustworthiness.
(9) Records of Vital Statistics. Facts contained in
records or data compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report thereof was made to
a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the
absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter
of which a record, report, statement, or data compilation, in
any form, was regularly made and preserved by a public
office or agency, evidence in the form of a certification in
accordance with Rule 902, or testimony, that diligent search
failed to disclose the record, report, statement, or data
compilation, or entry.
(6) Referenced Statutes: Numerous existing statutes, the validity of which are
not affected by promulgation of the Illinois Rules of Evidence, Ill. R. Evid. 101,
relate in one form or another to the law of evidence. The Committee felt it was
inappropriate, unnecessary and unwise to refer specifically to the abundance of
statutory authority in an Appendix or otherwise. Reference is, however, made in the
body of the text of the Illinois Rules of Evidence to certain statutes by citation or
verbatim incorporation. Such references and the reasons therefor are as follows:
(1) Rule 404(a)(2): Character testimony of the alleged victim offered by the
accused is specifically made subject to the limitations on character evidence
contained in the rape shield statute, 725 ILCS 5/115–7.
(2) Rule 404(b): The bar to evidence of other crimes, wrongs, or acts to prove
character to show conformity is made subject to the provisions of 725 ILCS
5/115–7.3, dealing with enumerated sex-related offenses, along with 725 ILCS
5/115–7.4 and 725 ILCS 5/115–20, dealing with domestic violence and other
enumerated offenses, all of which allow admissibility of other crimes, wrongs,
or acts under certain circumstances.
(3) Rule 409: The parallel protection afforded by 735 ILCS 5/8–1901 with
respect to payment of medical or similar expenses is specifically referenced in
Rule 409 to preclude any possibility of conflict.
-8-
(4) Rule 611(c): 735 ILCS 5/2–1102 provides a definition of adverse party
or agent with respect to hostile witnesses as to whom interrogation may be by
leading questions.
(5) Rule 801(d)(1): The provisions of 725 ILCS 5/115–10.1, dealing with
prior inconsistent statements in a criminal case, are incorporated nearly verbatim
in Rule 801(d)(1)(A) in the interests of completeness and convenience. Similar
treatment is given to prior statements of identification, 725 ILCS 5/115–12, in
Rule 801(d)(1)(B).
(6) Rule 803(4)(B): 725 ILCS 5/115–13, dealing with statements by the
victim to medical personnel in sexual abuse prosecutions, is included verbatim
in recognition that the statute admits statements to examining physicians while
the generally applicable provisions of Rule 803(4)(A) do not.
(7) Redundancy: Where redundancy exists between a rule contained in the
Illinois Rules of Evidence and another Illinois Supreme Court rule, reference should
be made solely to the appropriate Illinois rule of evidence.
Respectfully Submitted,
Honorable Donald C. Hudson, Chair
Honorable Warren D. Wolfson (retired), Vice-Chair
Professor Ralph Ruebner, Reporter
Professor Michael H. Graham, Advisor
Honorable Robert L. Carter
Honorable Tom Cross, Illinois State Representative
Honorable John J. Cullerton, President of the Illinois State Senate
Honorable Gino L. DiVito (retired)
Honorable Nathaniel R. Howse, Jr.
Honorable Heidi Ladd
Eileen Letts, Esquire
Shannon M. McNulty, Esquire
Robert Neirynck, Esquire
Honorable Dennis J. Porter
Michael Scodro, Solicitor General
Todd Smith, Esquire
Brian K. Trentman, Esquire
Michael J. Warner, Esquire
Honorable Arthur J. Wilhelmi, Illinois State Senator
-9-
11ARTICLE I. GENERAL PROVISIONS RULE 101
Rule 101. Scope; Denitions
(a) Scope. ese rules apply to proceedings in
United States courts. e specic courts and proceed-
ings to which the rules apply, along with exceptions, are
set out in Rule 1101.
(b) Denitions. In these rules:
(1) “civil case” means a civil action or proceeding;
(2) “criminal case” includes a criminal proceed-
ing;
(3) “public oce” includes a public agency;
(4) “record” includes a memorandum, report, or
data compilation;
(5) a “rule prescribed by the Supreme Court”
means a rule adopted by the Supreme Court under
statutory authority; and
(6) a reference to any kind of written material
or any other medium includes electronically stored
information.
Rule 101. Scope
ese rules govern proceedings in the courts of
Illinois to the extent and with the exceptions stated
in Rule 1101. A statutory rule of evidence is eective
unless in conict with a rule or a decision of the Illinois
Supreme Court.
Committee Comment to Rule 101
Rule 101 provides that a statutory rule of evidence is
effective unless in conict with an Illinois Supreme Court
rule or decision. There is no current statutory rule of evidence
that is in conict with a rule contained in the Illinois Rules
of Evidence.
Author’s Commentary on Ill. R. Evid. 101
Except for the difference in federal court proceedings
and the acknowledgment that statutory rules of evidence are
effective unless they are in conict with a rule or a decision of
the Illinois Supreme Court, IRE 101 is identical to the federal
rule before the latter’s amendment solely for stylistic purposes
effective December 1, 2011. See also the fourth paragraph of
the Committee’s general commentary on page 1 of this guide.
Note that the Illinois rule does not have a subdivision (b), nor
does it contain the denitions now provided by FRE 101(b).
That entire subdivision, with the denitions it provides, was
added to the federal rule effective December 1, 2011.
“Rule 1101,” referred to in IRE 101, reiterates—in IRE
1101(a)—that these evidence rules “govern proceedings in
the courts of Illinois.” It then provides —in IRE 1101(b) and
(c)—the proceedings in which the evidence rules do not apply:
in the court’s determination of preliminary questions of fact
for the admissibility of evidence (IRE 1101(b)(1); in grand jury
proceedings (IRE 1101(b)(2); for various listed miscellaneous
proceedings (IRE 1101(b)(3); and in small claims actions (IRE
1101(c).
Statutory ruleS of evidence
Regarding the ability of the General Assembly to provide
for rules of evidence by statutory enactment, see First National
Bank of Chicago v. King, 165 Ill. 2d 533, 542 (1995) (holding
that “the legislature has the power to prescribe new rules of evi-
dence and alter existing ones,” and that such “action does not
offend the separation-of-powers clause of our constitution”),
and People v. Orange, 121 Ill. 2d 364, 381 (1988) (holding that
the supreme court’s previous refusal “to allow the substantive
use of prior inconsistent statements [citation] did not preclude
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
12RULE 101 ARTICLE I. GENERAL PROVISIONS
the legislature from doing so”). See, also, Supreme Court Rule 1
(asserting that “[g]eneral rules apply to both civil and criminal
proceedings” and that “[t]he rules on proceedings in the trial
courts, together with the Civil Practice Law and the Code of
Criminal Procedure, shall govern all proceedings in the trial
court, except to the extent that the procedure in a particular
kind of action is regulated by a statute other than the Civil
Practice Law.”
Peterson: Separation of powerS and the Supreme court’S primary
conStitutional authority over court proceedingS
People v. Drew Peterson, 2017 IL 120331, offers a compre-
hensive explanation of the principles that support the separa-
tion of powers concerning the rules of evidence:
“[The judicial power, which includes rulemaking
authority to regulate the trial of cases,] necessarily
extends to the adoption of rules governing the
admission of evidence at trial, an authority this
court has frequently exercised. See, e.g., People
v. Lerma, 2016 IL 118496, ¶ 24 (recognizing
that the research concerning eyewitness identi-
cation “is well settled, well supported, and in
appropriate cases a perfectly proper subject for
expert testimony” at trial); People v. Gard, 158
Ill. 2d 191, 201, 204 (1994) (acknowledging that
“[t]his court has consistently held evidence per-
taining to polygraph examination of a defendant
generally inadmissible” and holding that evidence
of polygraph examination of a witness is also
inadmissible); Wilson v. Clark, 84 Ill. 2d 186, 196
(1981) (adopting Federal Rules of Evidence 703
and 705 concerning expert opinions offered at
trial); People v. Montgomery, 47 Ill. 2d 510, 516-
19 (1971) (adopting then-proposed Federal Rule of
Evidence 609, limiting the use of prior convictions
to impeach the credibility of a witness).
Ҧ 30 The separation of powers clause, however,
is not intended to achieve a “‘complete divorce’”
between the branches of government. Burger v.
Lutheran General Hospital, 198 Ill. 2d 21, 33 (2001)
(quoting In re J.J., 142 Ill. 2d 1, 7 (1991)); Kunkel
[v. Walton], 179 Ill. 2d [519], at 528 [(1997)]. The
separate spheres of authority exercised by each
branch may “overlap.” Kunkel, 179 Ill. 2d at 528;
Best [v. Taylor Machine Works], 179 Ill. 2d [367]
at 411 [(1997)]. The law of evidence is one area in
which an overlap between the spheres of authority
exercised by the judicial and legislative branches
exists. Although this court is empowered to pro-
mulgate rules regarding the admission of evidence
at trial, the General Assembly may legislate in
this area without necessarily offending separation
of powers. First National Bank of Chicago v.
King, 165 Ill. 2d 533, 542 (1995) (citing People
v. Rolngsmeyer, 101 Ill. 2d 137, 140 (1984));
accord Ill. Rs. Evid., Committee Commentary (eff.
Jan. 1, 2011) (“Illinois Rules of Evidence are not
intended to preclude the Illinois legislature from
acting in the future with respect to the law of
evidence”). Because the legislature is the branch
of government charged with the determination of
public policy, it has “the concurrent constitutional
authority to enact complementary statutes.” People
v. Walker, 119 Ill. 2d 465, 475 (1988).
Ҧ 31 Notwithstanding this overlap between the
judicial and legislative branches, this court retains
primary constitutional authority over court pro-
cedure. Kunkel, 179 Ill. 2d at 528. Accordingly,
where an irreconcilable conict exists between
a legislative enactment and a rule of this court
on a matter within the court’s authority, the rule
will prevail. Id. (citing Walker, 119 Ill. 2d at 475-
76); see also Ill. R. Evid. 101 (eff. Jan. 1, 2011)
(“statutory rule of evidence is effective unless in
conict with a rule or a decision of the Illinois
Supreme Court”). We agree with the State that, in
this instance, the statute and the rule [concerning
forfeiture by wrongdoing] cannot be reconciled
and the statute must give way to the rule.” People
v. Peterson, 2017 IL 120331, ¶¶ 29-31.
COMMENTARY CONTINUED
13ARTICLE I. GENERAL PROVISIONS RULE 101
COMMENTARY CONTINUED
committee comment and itS amendment
When these rules were submitted to the supreme court,
the Committee believed that there was no statutory rule of
evidence that was in conict with any rule contained in the
codied Illinois Rules of Evidence, with the possible exception
of section 5-1501(c) of the Juvenile Court Act of 1987 (705 ILCS
405/5-1501(c)). The original Committee Comment referred to
the possibility of that exception. However, that possibility was
removed with the supreme court’s holding in People v. Villa,
2011 IL 110777, which made it clear that even that statute
did not conict with the newly adopted rules. Thus, effective
January 6, 2015, the supreme court amended the Committee
Comment by deleting the reference concerning the single
possible conict that may have existed when the rules were
rst adopted.
exampleS of Statutory evidence ruleS
The Dead-Man’s Act (735 ILCS 5/8-201; see the Author’s
Commentary on Ill. R. Evid 601 for more on that Act) is an
example of a statutory rule of evidence, as are the statutes
contained in the Evidence Act (735 ILCS 5/8-101, et seq.) and
in Article 115 of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-1, et seq.).
Other examples of statutory rules of evidence include
section 115-7 of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-7, the rape shield law), referenced in IRE 412(a);
section 8-2801 of the Code of Civil Procedure (735 ILCS 8/8-
2801, the civil version of the rape shield law), referenced in
IRE 412(b); in the Code of Criminal Procedure of 1963, section
115-7.3, (725 ILCS 5/115-7.3, allowing evidence of certain
sex offenses in prosecutions for specied sex-related offenses);
115-7.4 (725 ILCS 5/115-7.4, allowing evidence of domestic
violence offenses in prosecutions for domestic violence-related
offenses); section 115-20 (725 ILCS 5/115-20, allowing evi-
dence of prior convictions for any of the type offenses it lists);
and the statutes that create hearsay exclusions and exceptions
in criminal cases, referenced in the Author’s Commentary on
Non-Adoption of Fed. R. Evid. 807; Illinois Statutory Hearsay
Residuary Exceptions; Application of Crawford’s “Testimonial
Hearsay” in Criminal Cases.
retroactive application
Note that, although the codied Illinois Rules of Evidence
became effective January 1, 2011, because they represent
changes affecting matters of procedure and not substantive
rights, they apply retroactively to pending cases. See Lambert
v. Coonrod, 2012 IL App (4th) 110518, ¶ 22 (holding that the
rules apply retroactively as procedural changes, citing Niven
v. Siqueira, 109 Ill. 2d 357, 364 (1985) (“[a] new law which
affects only procedure generally applies to litigation pending
when the law takes effect”), and Schweicker v. AG Services of
America, Inc., 355 Ill. App. 3d 439, 442 (2005) (“a procedural
change in the law prescribes a method of enforcing rights or
involves pleadings, evidence and practice”).
But note that, as pointed out in People v. Hunter, 2017 IL
121306, ¶ 37, “new procedural rules only apply to ongoing
proceedings “so far as practicable,”” citing section 4 of the
Statute on Statutes (5 ILCS 70/4). For that reason, “application
of the amended statute [which occurred well after the trial
court proceedings were completed] [was] not practicable.”
Id. See also People v. Brown, 2021 IL App (3rd) 170621, ¶ 37
(citing Hunter, in holding that the amendment to IRE 902(12)
had taken place after the trial had taken place and thus could
not be retroactively applied on appeal).
aidS for interpreting theSe codified ruleS of evidence
The need to rely on supreme and appellate court inter-
pretation of the codied rules of evidence is self-evident. It
sometimes occurs, however, that application of a given rule
is not clear and that there are no Illinois decisions that offer
guidance. Such was the case in the supreme court decision in
People v. Thompson, 2016 IL 118667. There, the court noted
that it had “never addressed the admissibility of lay opinion
identication testimony under Rule of Evidence 701 or whether
a law enforcement ofcer may offer such testimony under the
rule.” Thompson, at ¶ 40. The remedy, the supreme court said,
was that “[b]ecause Rule of Evidence 701 is modeled after
Federal Rule of Evidence 701 (Fed. R. Evid. 701), we may look
to federal law, as well as state decisions interpreting similar
rules for guidance.” Id. The court then embarked on a thorough
examination of federal and other-state decisions to answer the
issues it confronted, ultimately applying standards derived from
14RULE 101 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
that examination to the issues under review. To be sure, the
supreme court frequently has applied the same procedure in
other situations when construing a statute that is modeled after
a federal law. But it is comforting to have a direct answer to the
frequently asked question of whether it is proper to consult and
cite federal or other out-of-state authority interpreting evidence
rules similar to those adopted in Illinois.
15ARTICLE I. GENERAL PROVISIONS RULE 102
Rule 102. Purpose
ese rules should be construed so as to administer
every proceeding fairly, eliminate unjustiable expense
and delay, and promote the development of evidence
law, to the end of ascertaining the truth and securing a
just determination.
Rule 102. Purpose and Construction
ese rules shall be construed to secure fairness in
administration, elimination of unjustiable expense
and delay, and promotion of growth and development
of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
Author’s Commentary on Ill. R. Evid. 102
IRE 102 is identical to the wording in its federal counterpart
before the amendments to the federal rules solely for stylistic
purposes that became effective on December 1, 2011.
COMMENTARY
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
16RULE 103 ARTICLE I. GENERAL PROVISIONS
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim
error in a ruling to admit or exclude evidence only if the
error aects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the
record:
(A) timely objects or moves to strike; and
(B) states the specic ground, unless it was
apparent from the context; or
(2) if the ruling excludes evidence, a party informs
the court of its substance by an oer of proof, unless
the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Oer
of Proof. Once the court rules denitively on the
record—either before or at trial—a party need not
renew an objection or oer of proof to preserve a claim
of error for appeal.
(c) Court’s Statement About the Ruling; Directing
an Oer of Proof. e court may make any statement
about the character or form of the evidence, the objec-
tion made, and the ruling. e court may direct that
an oer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmis-
sible Evidence. To the extent practicable, the court
must conduct a jury trial so that inadmissible evidence
is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take
notice of a plain error aecting a substantial right, even
if the claim of error was not properly preserved.
Rule 103. Rulings on Evidence
(a) Eect of Erroneous Ruling. Error may not be
predicated upon a ruling which admits or excludes evi-
dence unless a substantial right of the party is aected,
and
(1) Objection. In case the ruling is one admit-
ting evidence, a timely objection or motion to strike
appears of record, stating the specic ground of
objection, if the specic ground was not apparent
from the context; or
(2) Oer of Proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the court by oer or was apparent
from the context within which questions were asked.
(b) Preserving a Claim of Error for Appeal.
(1) Civil and Criminal Cases. In civil and crim-
inal trials where the court has not made a previous
ruling on the record concerning the admission of
evidence, a contemporaneous trial objection or oer
of proof must be made to preserve a claim of error
for appeal.
(2) Criminal Cases. In criminal trials, once the
court rules before or at trial on the record concerning
the admission of evidence, a contemporaneous trial
objection or oer of proof need not be renewed to
preserve a claim of error for appeal.
(3) Civil Cases. In civil trials, even if the court
rules before or at trial on the record concerning the
admission of evidence, a contemporaneous trial
objection or oer of proof must be made to preserve
a claim of error for appeal.
(4) Posttrial Motions. In all criminal trials and
in civil jury trials, in addition to the requirements
provided above, a claim of error must be made in
a posttrial motion to preserve the claim for appeal.
Such a motion is not required in a civil nonjury trial.
(c) Record of Oer and Ruling. e court may
add any other or further statement which shows the
character of the evidence, the form in which it was
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
17ARTICLE I. GENERAL PROVISIONS RULE 103
Author’s Commentary on Fed. Rs. Evid. 103(a) and 103(b)
fre 103(a)
FRE 103(a), like IRE 103(a), provides that, to preserve error
for review, a timely objection or an offer of proof is required. In
addition to that requirement, in criminal jury cases see Federal
Rule of Criminal Procedure 33, and in civil jury cases see
Federal Rule of Civil Procedure 50. See also Ortiz v. Jordan,
131 S. Ct. 884 (2011) (absent a Rule 50 motion, “we have
repeatedly held, an appellate court is ‘powerless’ to review
the sufciency of the evidence after trial”), quoting Unitherm
Food Systems, Inc. v. Swift-Eckrich, Inc. 546 U.S. 394 (2006)
(“A postverdict motion is necessary because ‘[d]etermination
of whether a new trial should be granted or a judgment entered
under Rule 50(b) calls for the judgment in the rst instance of
the judge who saw and heard the witnesses and has the feel of
the case which no appellate printed transcript can impart.’”).
fre 103(b)
In 2000, a paragraph was added to FRE 103(a). That para-
graph was converted into FRE 103(b) as a result of the amend-
ments that were made to the federal rules for stylistic purposes
effective December 1, 2011. Under current FRE 103(b), in a
federal court proceeding there is no need to renew an objection
or an offer of proof to preserve a claim of error for appeal once
the court makes a “denitive” ruling that admits or excludes
evidence. That portion of the federal rule was not adopted in
Illinois, because a renewal of an objection or an offer of proof
is required in civil cases in Illinois, even where there was a
previous denitive ruling by the court (generally, in a pretrial
ruling on a motion in limine). See the Author’s Commentary on
Ill. R. Evid. 103(a), as well as the Author’s Commentary on Ill.
R. Evid. 103(b).
The issue of what is a “denitive” ruling occasionally is a
disputed issue in federal cases. In Wilson v. Williams, 182 F. 3d
562 (7th Cir. 1999), a case decided while the amendment to
the rule was pending before Congress and before its adoption,
the Seventh Circuit Court of Appeals, sitting en banc, offered
guidance as to what is meant by a “denitive” ruling. The court
succinctly pointed out that denitive rulings “do not invite
reconsideration.” Wilson, 182 F.3d at 566. The court made that
statement after explaining that,
“if the judge’s ruling is tentative—if, for example,
the judge says that certain evidence will be admit-
ted unless it would be unduly prejudicial given
the way the trial develops—then later events may
lead to reconsideration, and the litigant adversely
affected by the ruling must raise the subject later
so that the judge may decide whether intervening
COMMENTARY
oered, the objection made, and the ruling thereon.
It may direct the making of an oer in question and
answer form.
(d) Hearing of Jury. In jury cases, proceedings shall
be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury
by any means, such as making statements or oers of
proof or asking questions in the hearing of the jury.
(e) Plain Error. Nothing in this rule precludes
taking notice of plain errors aecting substantial rights
although they were not brought to the attention of the
court.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
18RULE 103 ARTICLE I. GENERAL PROVISIONS
Author’s Commentary on Ill. R. Evid. 103(a)
IRE 103(a) is identical to its counterpart federal rule before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011, except for the omission of what was then
the last sentence (which constituted the nal paragraph) of
pre-amended FRE 103(a). That sentence—which excuses the
renewal of a contemporaneous trial objection or offer of proof
after a “denitive” in limine ruling in all cases—is now in its
own subdivision, FRE 103(b), as a result of the December 1,
2011 amendments. The Illinois version of Rule 103(b)—which
differs substantively from its federal counterpart—is discussed
below in the Author’s Commentary on IRE 103(b).
IRE 103(a) provides the requirements for assigning a claim
of error in admitting or excluding evidence: (1) the requirement
that a substantial right is affected, and (2) the requirement that
the error is called to the attention of the trial court, to enable
it to take appropriate action, through a timely objection or a
motion to strike when evidence is admitted, or through an offer
of proof when evidence is excluded. The latter requirement also
enables the opposing party to take proper corrective measures
when required.
general principleS related to objectionS (ire 103(a)(1))
“When a party has stated no basis for an objection and the
trial court has sustained the objection but provided no reason
for its ruling, this court presumes that the trial court ruled on
the grounds of relevancy.” People v. Boston, 2016 IL App (1st)
133497, ¶ 61, citing People v. Upton, 230 Ill. App. 3d 365,
372 (1992). The same rule applies when the trial court, without
providing a basis for its ruling, has overruled an objection that
stated no basis. People v. Martin, 2017 IL App (4th) 150021,
¶ 16. For an example of an appellate court’s application of the
rule that both an objection and a ruling made without stating a
basis is based on relevancy, see North Spaulding Condominium
Assn. v. Cavanaugh, 2017 IL App (1st) 160870, ¶¶ 27-31
(holding that the trial court’s rulings were correct because the
questions “were not relevant to any issue being tried”) Id. at
¶ 31.
An objection based upon a specied ground waives all
grounds not specied, and a ground of objection not presented
at trial will not be considered on review. People v. Landwer,
166 Ill. 2d 475, 498 (1995) (holding that general objections
are insufcient to preserve an error for review); People v.
Casillas, 195 Ill. 2d 461, 491 (2000) (objection on the grounds
of hearsay did not preserve an objection on the grounds of
unreliability); People v. Lewis, 165 Ill. 2d 305, 335-36 (1995)
(objection based on lack of foundation prohibits assertion of
hearsay on appeal); People v. Barrios, 114 Ill. 2d 265 (1986)
(“Objections at trial on specic grounds, of course, waive all
other grounds of objection.”); People v. Canaday, 49 Ill. 2d
COMMENTARY CONTINUED
events affect the ruling.” Wilson, 182 F.3d at
565-66.
The court also pointed out that “[a] pretrial ruling is
denitive only with respect to subjects it covers” (id. at 568),
and, because in the case at bar there was no objection to the
misuse of evidence admitted by the trial court, the issue had
been forfeited on appeal. From Wilson and subsequent federal
circuit court decisions, it is clear that trial court rulings that
do not satisfy the rule’s requirement of “denitive” are those
that are tentative or conditional, or made without prejudice, or
made with the court’s statement that it is willing to reconsider
its ruling, or address only a limited subject matter that does
not cover trial error alleged to have been made. Where those
circumstances are present, to preserve an issue for appeal, a
renewal of an objection or an offer of proof must be made.
For an example of the application of FRE 103(b)’s denitive
ruling requirement, see United States v. Bradford, 905 F.3d 497
(7th Cir. 2018) (holding that, though defendant had made a
motion in limine, the motion had not been made with speci-
city as required by FRE 103(a)(1)(B) for it did not cite Rules
404(b) or 403, both of which defendant relied upon on appeal
and the trial court’s ruling had not been denitive, and further
holding—under plain error review—that the challenged other
crimes evidence was properly admitted as relevant to prove the
charged offense of conspiracy).
19ARTICLE I. GENERAL PROVISIONS RULE 103
416, 423-24 (1971) (objection based on best evidence rule did
not preserve objection based on admission of photographs of
stolen television sets); Mikolajczyk v. Ford Motor Co., 231 Ill.
2d 516, 557 (2008) (“A party forfeits the right to challenge a
jury instruction that was given at trial unless it makes a timely
and specic objection to the instruction and tenders an alterna-
tive, remedial instruction to the trial court.”).
The takeaway from the principles embodied in the above-
cited cases: Attorneys must take care to present the proper basis
or bases for objections. Objecting without stating a basis allows
the trial and reviewing courts to assume that the objection was
based on relevance, and allows them to rule accordingly. And
failure to state a proper basis for objection allows the trial
court to rule on the basis provided and the reviewing court to
consider the propriety of the trial court’s ruling based on the
grounds provided, which in both cases risks forfeiture of an
otherwise proper basis.
deciSionS on offerS of proof (ire 103(a)(2))
Regarding the requirement of an offer of proof, see People
v. Peeples, 155 Ill. 2d 422 (1993) (need for offer of proof when
evidence is refused by trial court); and People v. Lynch, 104 Ill.
2d 194 (1984) (“if a question shows the purpose and materi-
ality of the evidence, is in a proper form, and clearly admits
of a favorable answer, the proponent need not make a formal
offer of what the answer would be, unless the trial court asks
for one”). See also People v. Andrews, 146 Ill. 2d 114, 420-21
(1992) (“It is well recognized that the key to saving for review
an error in the exclusion of evidence is an adequate offer of
proof in the trial court.”); People v. Thompkins, 181 Ill. 2d 1,
9-10 (1998) (“Trial courts are required to permit counsel to
make offers of proof, and a refusal to permit an offer generally
is error. *** The two primary functions of an offer of proof are
to disclose to the trial judge and opposing counsel the nature
of the offered evidence, enabling them to take appropriate
action, and to provide the reviewing court with a record to
determine whether exclusion of the evidence was erroneous
and harmful.”).
For a post-codication case that stressed the need for offers
of proof in order to determine a claim on appeal, see People
v. Shenault, 2014 IL App (2d) 130211 (holding that failure of
the defendant to make offers of proof as to testimony of two
witnesses concerning their excluded testimony made it “impos-
sible to determine whether its exclusion could have resulted
in any prejudice to defendant.”). Shenault, at ¶ 12. See also
People v. Gibbs, 2016 IL App (1st) 140785, ¶¶ 35-37 (holding
that failure to make a formal or informal offer of proof was fatal;
citing supreme court decisions in pointing out that an offer
of proof that merely summarizes the witness’s testimony in a
conclusory manner is inadequate, that counsel must explicitly
state what the excluded testimony would reveal, and that an
offer of proof must be considerably detailed and specic).
In People v. Staake, 2017 IL 121755, a prosecution for sec-
ond degree murder, the State moved in limine to preclude the
defendant from presenting evidence and argument regarding
the victim’s refusal to accept medical treatment as the interven-
ing cause of the victim’s death—rather than the knife wound
that the defendant had inicted on the victim. In response to the
motion in limine, the trial court ruled that, before the defendant
could ask specic questions on cross-examination or make an
argument to the jury concerning the alleged intervening cause
of death, he had to make a proffer through an offer of proof to
show that there was a factual basis, rather than speculation,
for the questioning or argument. On review of the defendant’s
failure to make the required offer of proof, the supreme court
pointed out: (1) that the defendant was not categorically pro-
hibited from cross-examining State witnesses on the issue of
causation nor from arguing to the jury that the victim’s refusal
of medical treatment was an intervening cause of death; (2) that
the defendant could have explained, outside the jury’s pres-
ence, what testimony he expected to elicit; and (3) that, even
after testimony was given at trial, the defendant could have
requested permission to argue to the jury that the State had
failed to prove causation based on the “ample evidence” that
had been unknown when the trial court made its ruling on the
motion in limine. Based on those considerations, the supreme
court concluded that the defendant’s failure to provide the
required offer of proof properly resulted in the forfeiture of his
right to cross-examine witnesses on the issue of the intervening
cause of death or to present argument on that topic.
COMMENTARY CONTINUED
20RULE 103 ARTICLE I. GENERAL PROVISIONS
People v. Wright, 2017 IL 119561, ¶¶ 79-84, illustrates that,
after an offer of proof, the proffer of evidence subject to the
offer needs to occur at the proper time for the evidence to be
admitted. In Wright, during the State’s case-in-chief, the pro se
defendant made an offer of proof that a detective would testify
that his codefendant said that he had committed the charged
offense of armed robbery with a BB gun. The trial court sus-
tained the State’s objection to the defendant’s attempt to elicit
the codefendant’s statement on cross-examination. Later, in a
hearing outside the jury’s presence, the codefendant invoked
his fth amendment right not to testify. Thus, the codefendant
was then deemed unavailable for purposes of IRE 804(b)(3).
However, there was no indication that the defendant sought to
call the codefendant for examination concerning his statement,
or that he otherwise sought to obtain the statement’s admission.
Because those efforts had not occurred after the codefendant
was deemed unavailable to testify, the supreme court held that
the trial court had properly denied admission of the codefen-
dant’s statement.
Author’s Commentary on Ill. R. Evid. 103(b)
The current version of IRE 103(b) was added by the Illinois
Supreme Court effective October 15, 2015. It replaced the rule
that previously was designated as IRE 103(b), which addressed
(and continues to address) a different topic. The replaced rule
is now designated IRE 103(c). For reasons provided below,
current IRE 103(b), which provides the Illinois standards for
preserving a claim of error for appeal, differs substantially from
FRE 103(b).
non-adoption of fre 103(b)
Illinois has adopted its own version of Rule 103(b). FRE
103(b) has not been adopted for it is inconsistent with Illinois
law because, in a civil case, Illinois requires the making
of a contemporaneous trial objection or an offer of proof to
preserve an error for appeal—even after an in limine ruling.
See, e.g., Ill. State Toll Highway Auth. v. Heritage Standard
Bank and Trust Co., 163 Ill. 2d 498, 502 (1994) (“the law is
well established that the denial of a motion in limine does not
preserve an objection to disputed evidence later introduced at
trial. The moving party remains obligated to object contempo-
raneously when the evidence is offered at trial.”). See also the
following examples of supreme and appellate court decisions
in civil cases: Simmons v. Graces, 198 Ill. 2d 541, 569 (2001);
Thornton v. Garcini, 237 Ill. 2d 100 (2009); Snelson v. Kamm,
204 Ill. 2d 1, 23 (2003); Sinclair v. Berlin, 325 Ill. App. 3d 458,
471 (2001); Romanek-Golub & Co. v. Anvan Hotel Corp., 168
Ill. App. 3d 1031 (1988).
See particularly People v. Denson, discussed in the follow-
ing paragraphs, and the decision in Sheth v. SAB Tool Supply
Co., 2013 IL App (1st) 110156, ¶¶ 107-112, where the appel-
late court held that the defendants’ objections based only on
foundation did not preserve their motion in limine objections
to the testimony of the plaintiffs’ expert witness that had been
based on two other grounds.
Also, in considering Denson and the non-adoption of FRE
103(b), the highly relevant decision in Arkebauer v. Springeld
Clinic, 2021 IL App (4th) 190697, provides ample evidence
for the absolute need for a contemporary objection in a civil
jury trial where an in limine motion has been denied. In that
case, the plaintiff’s pretrial motions in limine to exclude certain
evidence had been denied by the trial court, but the plaintiff
in this civil case failed to make a contemporaneous objection
during the jury trial. To overcome the application of forfeiture
on appeal, the plaintiff contended “that the court’s denial of her
motions in this case were so denite and controlling that she
was not required to raise trial objections to preserve her evi-
dentiary challenges.” Id. at ¶ 62. The appellate court disagreed
with that assertion, and found that no such “exception” to the
forfeiture rule existed. Id. Rejecting the contrary pre-codica-
tion decision in Cunningham v. Millers General Insurance Co.,
227 Ill App. 3d 201 (1992), “to the extent it holds a trial court’s
ruling on a motion in limine may be found to be ‘so denite and
unconditional’ that it obviates the need for a subsequent trial
objection” (Arkebauer at ¶ 68), the appellate court reasoned
that “applying the “exception” in these circumstances would
result in its swallowing the contemporaneous objection rule,
rendering the rule meaningless.” Id. at ¶ 67.
COMMENTARY CONTINUED
21ARTICLE I. GENERAL PROVISIONS RULE 103
COMMENTARY CONTINUED
PeoPle v. Denson
In contrast to a civil case, the standard requiring renewal of
an objection does not apply in criminal cases. That was made
manifestly clear in the supreme court’s decision in People v.
Denson, 2014 IL 116231, which supplies the rationale and the
impetus for the adoption of Illinois’ version of Rule 103(b). In
Denson, the supreme court: (1) rejected the appellate court’s
holding that distinguished a defendant’s raising an issue by
ling a motion in limine from his responding to or opposing
such a motion, which led to the appellate court’s erroneous
holding that the defendant had forfeited an issue on appeal by
merely responding to the State’s motion; and (2) pointed out
that in all its prior decisions in criminal cases it had held that
the renewal of an objection, through a contemporaneous trial
objection after an adverse ruling on a motion in limine, is not
a prerequisite to preserving an issue for appeal, as long as the
issue is raised in a posttrial motion.
Denson’S rationale for diStinguiShing criminal and civil caSeS
After acknowledging the general rule that a contemporane-
ous trial objection is necessary in both civil and criminal cases
for “preserving routine trial error” where a motion in limine had
not previously been made (People v. Denson, 2014 IL 116231,
¶ 21), the supreme court explained the difference between civil
and criminal cases—where a motion in limine had previously
been ruled upon—as well as the rationale for its holding, as
follows:
“Again, with respect to issues litigated in limine,
the civil and criminal forfeiture rules are different,
and it is not simply that the former requires a con-
temporaneous trial objection while the latter does
not. The difference is that the civil rule requires
a contemporaneous trial objection, whereas the
criminal rule requires that the issue be raised in
the posttrial motion. In other words, both the civil
rule and the criminal rule require the objecting
party to bring the in limine issue to the trial court’s
attention one additional time. In civil cases, that
is through a contemporaneous trial objection. In
criminal cases, that is through the posttrial motion.
And this distinction makes perfect sense because,
while posttrial motions are a mandatory prereq-
uisite to raising an issue on appeal in criminal
cases ([People v.] Enoch, 122 Ill. 2d [176,] at 186
[(1988)]), they are not in many civil cases (Ill. S.
Ct. R. 366(b)(3)(ii) (eff. Feb. 1, 1994)).” People v.
Denson, 2014 IL 116231,¶ 23.
Supreme Court Rule 366(b)(3)(ii), referred to in the quote
from Denson above, provides that in a nonjury civil case
“[n]either the ling of nor the failure to le a post judgment
motion limits the scope of review.” Also, section 2-1203 of the
Code of Civil Procedure, 735 ILCS 5/2-1203, allows for (it does
not require) the ling of motions after judgment in non-jury
civil cases.
On the other hand, section 2-1202 of the same Code, 735
ILCS 5/2-1202, sets forth the requirement for the ling of
post-trial motions in civil jury cases. And Supreme Court Rule
366(b)(2)(iii) provides that, in a civil jury case, “[a] party may
not urge as error on review of the ruling on the party’s post-trial
motion any point, ground, or relief not specied in the motion.”
For a comprehensive review of the relevant statutes, supreme
court rules, and case law on the requirement to make or not
make a posttrial motion in a civil case, see Arient v. Shaik, 2015
IL App (1st) 133969.
In criminal cases, section 116-1(b) of the Code of Criminal
Procedure of 1963, 725 ILCS 5/116-1(b), requires that “[a]
written motion for a new trial shall be led by the defendant
within 30 days following entry of a nding or the return of a
verdict” (i.e., in both bench and jury trials).
Crim v. DietriCh: focuS on the neceSSity for a poSttrial motion
in a civil jury trial and the effect of not filing Such a motion
In the medical malpractice case of Crim v. Dietrich, 2020
IL 124318, plaintiffs, the mother and father of the injured new-
born baby, alleged that defendant, the doctor who delivered
the baby: (1) failed to obtain the mother’s informed consent to
perform a natural birth rather than a Caesarean section, despite
possible risks associated with the baby’s large size; and (2) was
guilty of professional negligence during the delivery, resulting
in the baby’s injuries.
At the close of plaintiffs’ case during a jury trial, the trial court
granted a partial directed verdict for defendant on the informed
22RULE 103 ARTICLE I. GENERAL PROVISIONS
consent allegations. But the jury trial continued—limited to the
remaining professional negligence allegations—resulting in a
verdict for defendant on those allegations. Plaintiffs did not le
a posttrial motion on the jury’s verdict. They instead appealed
the circuit court’s ruling on the partial directed verdict on the
informed consent allegations. The appeal resulted in the appel-
late court’s reversing the directed verdict ruling and remanding
the case to the circuit court “for such other proceedings as
required by order of this court.” Crim, at ¶ 50.
On remand, the parties disputed whether the appellate
court’s mandate allowed for a trial de novo on all issues,
including the allegations concerning professional negligence,
which were determined by the jury. To resolve that issue, the
trial court certied a question for the appellate court under Ill.
S. Ct. R. 308. The certied question asked whether the appellate
court’s remand required a trial de novo on all claims. On this
second review, the appellate court granted the interlocutory
appeal, answering the certied question in the afrmative. The
supreme court then granted defendant’s petition for leave to
appeal.
In its review—with a recently appointed justice not partic-
ipating, another justice writing in special concurrence, and a
third justice dissenting—a four-justice majority of the supreme
court rst analyzed relevant supreme and appellate court
decisions and the requirements of section 2-1202 of the Code
of Civil Procedure (735 ILCS 5/2-1202), and it: (1) held that the
appellate court’s review and reversal of the trial court’s grant
of partial directed verdict on the informed consent allegations
was proper without a posttrial motion, because the ling of
such a motion was not necessary to preserve appellate review
on that issue, for the ruling was not based on a jury’s verdict;
(2) cited “sound policy reasons behind the requirement that
a litigant le a post-trial motion following a jury case” (id. at
¶ 34), in holding that “[t]he plain language of the statute and
case law interpreting section 2-1202, requires a litigant to le
a post-trial motion in order to challenge the jury’s verdict even
when the circuit court enters a partial directed verdict as to
other issues in the case” (id. at ¶ 35); (3) held that the mere l-
ing of a notice of appeal concerning a jury verdict where there
had been no posttrial motion “lies in direct contradiction with
the statutory requirements of section 1202” (id. at ¶ 39); and
(4) held that “the proposition that, ‘[w]hen a court of review
does not determine the merits of a case but merely reverses
and remands without specic directions, the judgment of the
court below is entirely abrogated and the cause stands as if no
trial had occurred,’” did not apply in this case because “the
appellate court’s mandate could not remand the matter for a
new trial on an issue never raised and not considered.” Id. at
¶ 40.
Crim provides two signicant takeaways. It emphatically
conrms the need for a posttrial motion in civil jury trials to
preserve appellate issues, as required by section 2-1202 and by
precedential reviewing court decisions interpreting and apply-
ing that statute. And it emphasizes the forfeiture effect of failing
to le a posttrial motion after a civil jury trial, where an appeal
is taken on the trial court’s alleged error in granting summary
judgment or a partial directed verdict. The consequence of
not ling a posttrial motion in those instances, is that, even
if the appeal is successful, any issue determined by the jury is
forfeited and not subject to retrial.
Crim did not address whether the appellate court’s rever-
sal of the trial court’s partial directed verdict was proper. Its
signicance is in its holding that, because the directed verdict
occurred by virtue of the trial court’s ruling and not a jury deter-
mination, the informed consent issue was properly appealed
and properly remanded for trial. But, because of the absence
of a posttrial motion, there could be no de novo trial on the
professional negligence issues determined by the jury. In sum,
although on remand defendant could be tried on the informed
consent issues, plaintiffs had forfeited the opportunity to pursue
on remand the retrial of their claims related to defendant’s
alleged professional negligence during the delivery of the baby.
Doe v. Parrillo: need for a record of proceedingS for appellate
review
The supreme court’s recent decision in Doe v. Parrillo,
2021 IL 126577, where defense counsel knowingly did not
participate in the jury trial and did not provide a court reporter
of the proceedings, provides numerous examples of the
non-reviewability of appellate arguments where the record on
appeal contains no trial transcript of proceedings related to the
COMMENTARY CONTINUED
23ARTICLE I. GENERAL PROVISIONS RULE 103
numerous issues presented to the reviewing court. The opinion
illustrates the importance of supplying a court reporter in civil
proceedings.
Summary of ire 103(b)’S requirementS for preServing iSSueS for
appeal after an in limine ruling
In sum, in an Illinois courtroom, to preserve an issue for
appeal where there has been a prior in limine ruling:
(1) in all civil trials, a contemporaneous renewal
of an objection or offer of proof is necessary (IRE
103(b)(3));
(2) in all criminal trials, a contemporaneous
renewal of an objection or offer of proof is not
necessary (IRE 103(b)(2));
(3) in all criminal trials and in all civil jury trials, a
posttrial motion is necessary (IRE 103(b)(4)); and
(4) in all civil non-jury trials, a posttrial motion is
not necessary (IRE 103(b)(4)).
Of course, a contemporaneous trial objection or offer of
proof is necessary to preserve an issue for review in all civil and
criminal trials where there has been no prior in limine ruling
(IRE 103(b)(1)).
motionS in limine
Although both federal and Illinois’ version of Rule 103(b)
refer to rulings made before trial without employing the phrase
“motion in limine,” a phrase nowhere to be found in the codi-
ed evidence rules, such motions are commonplace in felony
prosecutions and in high-stake civil cases. The Latin contained
in the phrase is often misinterpreted to mean a motion to limit
the evidence. But in limine means “at the start” or “on the
threshold.” So, the motion is designed to be made before
evidence is offered—usually well before the start of trial, but
sometimes during trial but before the evidence is offered. And
the motion is not limited to excluding evidence deemed to be
inadmissible, although that is the basis for its most frequent
application. When used for that purpose, the intent is to pre-
vent the opposing party from even initiating questions on topics
considered inadmissible, especially areas that might be unduly
prejudicial to the moving party’s case. But the motion also may
be used to ensure the admissibility of evidence. Its use before
trial for that purpose provides an opportunity for both sides to
offer briefs on close or questionable evidence questions and
allows the court an opportunity to consider proper rulings
that will provide an evidence blueprint for the trial and avoid
disputes during trial, especially at its outset during opening
statements.
In Reidelberger v. Highland Body Shop, Inc., 83 Ill.2d 545
(1981), a decision solely related to whether motion in limine
orders had been violated during a jury trial, the supreme court
made the following pronouncements about a motion in limine
made to exclude evidence:
“An in limine motion permits a party to obtain an
order before trial excluding inadmissible evidence
and prohibiting interrogation concerning such
evidence without the necessity of having the
questions asked and objections thereto made in
front of the jury. Thus, the moving party will be
protected from whatever prejudicial impact the
mere asking of the questions and the making of
the objections may have upon a jury. [Citation].
The ability to restrict interrogation makes the in
limine order a powerful weapon. This power, how-
ever, also makes it a potentially dangerous one.
Before granting a motion in limine, courts must be
certain that such action will not unduly restrict the
opposing party’s presentation of its case. Because
of this danger, it is imperative that the in limine
order be clear and that all parties concerned have
an accurate understanding of its limitations.”
Reidelberger, 83 Ill.2d at 549-50.
People v Zimmerman, 2018 IL App (4th) 170695, offers a
comprehensive discussion of the rationale for motions in limine
(as well as for offers of proof), and it offers suggestions for
implementing such motions, both for the admission and for the
exclusion of evidence:
“A motion in limine is addressed to a court’s inher-
ent power to admit or exclude evidence. These
motions are designed to call to the attention of a
trial court, in advance of trial, some evidence that
is potentially irrelevant, inadmissible, or prejudi-
cial and to obtain a pretrial ruling from the court
COMMENTARY CONTINUED
24RULE 103 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
excluding or permitting the evidence. The utility of
motions in limine comes from the fact that they are
typically ruled on signicantly in advance of trial.
As a result, motions in limine often achieve great
savings of time and judicial efciency, and if they
resolve difcult evidentiary issues prior to trial,
they can greatly encourage settlement or guilty
pleas and streamline preparations for trial. Seeking
a ruling in advance of trial also greatly assists the
trial court by giving it adequate time to review and
consider the evidentiary issue, research the mat-
ter, and consider whether to hold an evidentiary
hearing. For these and other reasons, we strongly
encourage litigants to take advantage of motions
in limine.
“The Illinois Supreme Court has called motions
in limine powerful and potentially dangerous
weapons because of their ability to restrict evi-
dence. Reidelberger v. Highland Body Shop, Inc.,
83 Ill.2d 545, 550, 416 N.E.2d 268, 271 (1981).
Accordingly, such motions must be specic and
allow the court and the parties to understand what
evidence is at issue. Written motions are strongly
preferred, especially whenever complicated
or sensitive evidence is at issue. This allows the
movant to carefully identify the evidence sought to
be excluded and articulate his or her argument in
support, preventing confusion and misunderstand-
ing by dening the evidence at issue and capturing
the movant’s arguments. If nothing else, a written
motion allows the parties and court to refer to a
xed version of the movant’s request.
“Likewise, rulings on motions in limine should
be in writing so as to prevent confusion and
misunderstanding. Trial judges should attempt to
enter narrow in limine orders, anticipate proper
evidence that might be excluded by the orders,
and make the orders clear and precise so that all
parties concerned have an accurate understanding
of their limitations. An unclear order in limine
is worse than no order at all. Before granting a
motion in limine, courts must be certain that such
action will not unduly restrict the opposing party’s
presentation of its case.
“One difculty common to all motions in limine is
that they occur—by denition—out of the normal
trial context, and resolving such a motion requires
the trial court to determine what that context will
be. Thus, the court must receive offers of proof
consisting either of live testimony or counsel’s
representations that the court nds sufciently
credible and reliable. ***
“An offer of proof serves dual purposes: (1) it
discloses to the court and opposing counsel the
nature of the offered evidence, thus enabling
the court to take appropriate action, and (2) it
provides the reviewing court with an adequate
record to determine whether the trial court’s
action was erroneous. An offer of proof may be
formal or informal, but an informal offer of proof
must identify the complained-of evidence with
particularity. An offer of proof is inadequate if it
is a mere summary or offers unsupported specu-
lation about the evidence. While an offer of proof
assists the parties, the trial court, and a reviewing
court in determining the evidence at issue, a court
is disadvantaged in ruling on a motion in limine
because it is considered in a vacuum, before the
presentation of the full evidence at trial that may
justify admission or require exclusion.
“The rules for offers of proof apply with equal
force to motions in limine.
“Depending upon the nature of the evidentiary
issue before it, the court has vast discretion as
to how it will conduct the hearing on a motion
in limine—that is, requiring live witnesses or
representations, afdavits, or whatever—and the
court has vast discretion as to how detailed such
a hearing will be, as well.” People v Zimmerman,
2018 IL App (4th) 170695, ¶¶ 134-138 (internal
25ARTICLE I. GENERAL PROVISIONS RULE 103
COMMENTARY CONTINUED
citations, except for the rst Reidelberger citation,
and all internal quotation marks omitted).
need for contemporaneouS trial objection where there haS
been no in limine ruling—even in bench trialS
A caveat for criminal defense attorneys: the holding in
Denson that excuses the renewal of an objection in a criminal
trial after an unfavorable ruling on a motion in limine is limited.
Denson does not excuse the failure to make a contemporane-
ous trial objection in a criminal case—jury or non-jury—where
there has been no prior in limine ruling.
And note that there is no exception for procedural default
in bench trials. The proposition that, in a bench trial, the trial
judge is presumed to consider only admissible evidence does
not excuse the need to make a contemporaneous trial objection
when needed. See People v. A Parcel of Property Commonly
Known as 1945 North 31st Street, 217 Ill. 2d 928 (2005) (“this
proposition [that the trial judge is presumed to consider only
admissible evidence] has never been used by a court as a
means of excusing a party from the type of procedural default
at issue here; indeed, in the absence of such an objection, an
issue, even in a criminal bench trial, has been consistently
deemed procedurally defaulted.”).
Note, too, that a posttrial motion has been held to be nec-
essary to preserve an issue for review in a criminal case, even
after a bench trial, long before the holding in Denson. See, for
example, section 116-1 of the Code of Criminal Procedure of
1963 (725 ILCS 5/116-1) and People v. Enoch, 146 Ill. 2d 44
(1991).
rationale for poSttrial motion and need for court order to
obtain an extenSion of time for filing poSttrial motion
As noted above, a posttrial motion is unnecessary in a civil
nonjury trial. For those cases where such a motion is necessary,
the supreme court has provided the following rationale:
“The purpose of the post-trial motion specicity
rule is threefold. First, it allows the decision maker
who is most familiar with the events of the trial,
the trial judge, to review his decisions without the
pressure of an ongoing trial and to grant a new
trial if, on reconsideration, he concludes that his
earlier decision was incorrect. [Citations.] Second,
by requiring the statement of the specic grounds
urged as support for the claim of error, the rule
allows a reviewing court to ascertain from the
record whether the trial court has been afforded
an adequate opportunity to reassess the allegedly
erroneous rulings. Third, by requiring the litigants
to state the specic grounds in support of their
contentions, it prevents them from stating mere
general objections and subsequently raising on
appeal arguments which the trial judge was never
given an opportunity to consider. [Citations.] The
rule***has the salutary effect of promoting both
the accuracy of decision making and the elimina-
tion of unnecessary appeals.” Brown v. Decatur
Memorial Hospital, 83 Ill. 2d 344, 349-50 (1980).
People v. Hall, 2017 IL App (1st) 150918, provides an illus-
tration of how time requirements for ling a posttrial motion
under section 2-1202 of the Code of Civil Procedure (735 ILCS
5/2-1202(c)) can be violated or extended. The takeaways from
Hall are: (1) the opposing party cannot agree to or waive the
30-day jurisdictional requirement for ling a posttrial motion,
and (2) in order to obtain an extension of time for ling a
posttrial motion, the trial court must enter an order granting
the extension.
claimS not Subject to forfeiture in criminal caSeS, with focuS
on conStitutional-iSSue exception to the forfeiture rule
The supreme court has held that in criminal cases “three
types of claims are not subject to forfeiture for failing to le
a posttrial motion: (1) constitutional issues that were properly
raised at trial and may be raised later in a postconviction peti-
tion; (2) challenges to the sufciency of the evidence; and (3)
plain errors.” People v. Cregan, 2014 IL 11360, ¶ 16.
The plain-error exception to forfeiture is addressed in the
Author’s Commentary on Ill. R. Evid. 103(e), infra. The consti-
tutional-issue exception is explained by the supreme court in
Cregan:
“[T]he constitutional-issue exception recognized
in [People v.] Enoch, 122 Ill. 2d 176 (1988)] is
based primarily in the interest of judicial econ-
omy. The Post-Conviction Hearing Act provides a
26RULE 103 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
mechanism for criminal defendants to assert that
a conviction or sentence resulted from a substan-
tial denial of their rights under the United States
Constitution, the Illinois Constitution, or both. 725
ILCS 5/122-1(a) (West 2008). Postconviction pro-
ceedings permit inquiry into constitutional issues
that were not, and could not have been, adjudi-
cated on direct appeal. People v. English, 2013 IL
112890, ¶ 22. If a defendant were precluded from
raising a constitutional issue previously raised at
trial on direct appeal, merely because he failed to
raise it in a posttrial motion, the defendant could
simply allege the issue in a later postconviction
petition. Accordingly, the interests in judicial
economy favor addressing the issue on direct
appeal rather than requiring defendant to raise it
in a separate postconviction petition.” Cregan, at
¶ 18.
Note that, under Cregan, the constitutional-issue exception
to forfeiture on direct appeal applies only where the issue was
“properly raised at trial,” but not raised in a posttrial motion.
Nevertheless, a constitutional issue not raised at trial may be
raised in a postconviction proceeding.
For appellate court decisions addressing the constitution-
al-issue exception, see People v. Burnett, 2015 IL App (1st)
133610, ¶¶ 74-82 (holding that defendant, who did not raise
the constitutional issue at trial, could not invoke the exception,
but holding that the issue could be addressed nevertheless
because on appeal defendant raised an as-applied constitu-
tional challenge to a statute, a challenge that could be raised at
any time); People v. Davis, 2019 IL App (1st) 160408, ¶¶ 52-55
(where defendant contended the improper admission of oth-
er-crimes gun evidence violated his due process right to a fair
trial and thus eliminated the need for a posttrial motion, noting
that every defendant has a constitutional right to a fair trial
protected by due process, but that “not every error that could
potentially deprive a defendant of that right establishes con-
stitutional error” and, pointing out that the supreme court has
regularly distinguished between evidentiary and constitutional
errors and that it found no case “suggesting that the question
of the admissibility of evidence subsumes constitutional mag-
nitude,” holding that the constitutional-issue exception did not
apply and nding no error in its determination of error under
the second prong of the plain-error test and for ineffective
assistance of counsel).
preference for renewal of objection or offer of proof
In Illinois, even in criminal cases where it is unnecessary
to make a contemporaneous trial objection after the denial of
a motion in limine (and in federal cases because of possible
uncertainty as to whether a prior court ruling is “denitive”), it is
advisable for trial attorneys who receive adverse pretrial rulings
to renew contemporaneously an objection or an offer of proof,
as a matter of course and outside the presence of the jury. That
is so because the immediate goal at trial is to admit favorable
evidence and to bar unfavorable evidence. The renewal of an
objection or an offer of proof, not only assuredly preserves the
issue for appeal, it presents another opportunity (this time, with
the benet of context from admitted evidence) to persuade the
trial court to alter its ruling, and it creates an opportunity to
make what might be a better record than may have been made
during the previous effort to admit or bar the evidence. Also,
if the effort to persuade the trial court to alter its ruling fails, a
request should be made that the record reect a continuing
objection to the admission or non-admission of the disputed
evidence, especially in civil cases where a contemporaneous
trial objection or offer of proof is required—with the explicit
concurrence of the trial court—so that there is no need to make
continuous objections in the presence of the jury. See Fleming
v. Moswin, 2012 IL App 103475-B, ¶¶ 95-98 (discussing issues
related to continuing objections).
Consistent with the advice provided in the above paragraph,
the appellate court in People v. Zimmerman, 2018 IL App (4th)
170695, ¶ 149, offered this sage advice:
“The interlocutory nature of motions in limine is
why parties should reraise the issues during trial.
The trial court is always free to reconsider and
reassess its interlocutory rulings as the trial unfolds
and context is provided.”
27ARTICLE I. GENERAL PROVISIONS RULE 103
COMMENTARY CONTINUED
Author’s Commentary on Fed. R. Evid. 103(e)
Effective December 1, 2011, the revisions of the Federal
Rules of Evidence, solely for stylistic purposes, created FRE
103(e), replacing and rewording without substantive change
what had been FRE 103(d), which likewise had addressed the
issue of plain error.
plain error review in civil caSeS
Plain error review in civil cases differs from such review in
criminal cases. In the Seventh Circuit, such review is described
as follows:
“Plain error review of a forfeited evidentiary issue
in a civil case is available only under extraordinary
circumstances when the party seeking review can
demonstrate that: (1) exceptional circumstances
exist; (2) substantial rights are affected; and (3)
a miscarriage of justice will occur if plain error
review is not applied.” Jimenez v. City of Chicago,
732 F.3d 710, 720 (7th Cir. 2013) (citing Estate of
Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir.
2005), citing Stringel v. Methodist Hosp. of Ind.,
Inc., 89 F.3d 415, 421 (7th Cir. 1996)).
Almost identical sentiments were expressed by the Seventh
Circuit in yet another case also decided in 2013:
“In most civil cases, plain error review is unavail-
able; if a party fails to object at trial, the issue cannot
be raised on appeal. [Cite.] A narrow exception to
this general rule permits review where a party can
demonstrate that (1) exceptional circumstances
exist, (2) substantial rights are affected, and (3) a
miscarriage of justice will result if the doctrine is
not applied.” Perry v. City of Chicago, 733 F.3d
248, 254 (7th Cir. 2013).
Also, note that plain error review for closing arguments in
a civil case is not available. See Black v. Wrigley, 997 F.3d 702
(7th Cir. 2021), where the Seventh Circuit stated:
“when a party in a civil case fails to object to
improper statements in closing argument, we have
steadfastly refused to review even for plain error.
Kafka v. Truck Ins. Exch., 19 F.3d 383, 385 (7th
Cir. 1994) (‘[N]o plain error doctrine exists [in civil
cases] to remedy errors which are alleged to have
Author’s Commentary on Ill. R. Evid. 103(c)
IRE 103(c) is identical to what had been FRE 103(b) before
the amendments of the federal rules solely for stylistic purposes
effective December 1, 2011. The 2011 amendments resulted
in the federal rule’s re-designation as FRE 103(c). Similarly,
the addition of a substantively different IRE 103(b) on October
15, 2015, resulted in the Illinois rule that had previously been
designated as IRE 103(b) now having the same 103(c) designa-
tion as its federal counterpart. Both rules authorize the court
to make a relevant statement about its ruling, and to direct an
offer of proof through questions and answers.
Indirectly related to the rule, judges and attorneys need to
be aware of Supreme Court Rule 323(c), which provides the
procedure for the creation of a bystander’s report where no
verbatim transcript of proceedings is available. For a decision
addressing the rule and its requirements, see In re Parentage of
G.E., a/k/a G.O., a Minor, 2016 IL App (2d) 150643 (holding
that the record was inadequate for review because the pro-
posed bystander’s report did not comply with the requirements
of Rule 323(c)).
Author’s Commentary on Ill. R. Evid. 103(d)
IRE 103(d) is identical to what was FRE 103(c) before the
amendments of the federal rules solely for stylistic purposes
effective December 1, 2011, which resulted in its re-designa-
tion as FRE 103(d). The addition of a new IRE 103(b) on October
15, 2015 resulted in the Illinois rule previously designated as
IRE 103(c) having the same 103(d) designation as its federal
counterpart. Both the Illinois and the federal rule require the
trial court to take measures to prevent the jury from hearing
statements or inadmissible evidence based on contentions of
the attorneys.
28RULE 103 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
occurred during closing argument.’ (alteration in
original) (quoting Deppe v. Tripp, 863 F.2d 1356,
1364 (7th Cir.1988))).” Black v. Wrigley, 997 F.3d,
at 711.
plain error review in criminal caSeS
In criminal cases, the plain error doctrine is provided by
Federal Rule of Criminal Procedure 52(b): “A plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” See also United States v.
Olano, 507 U.S. 725 (1993) (holding that forfeited error may
be noticed if there was (1) an error, (2) that was plain, (3)
that affected the defendant’s substantial rights, and, when the
other three conditions have been met, (4) the error seriously
affected the fairness, integrity, or public reputation of judicial
proceedings).
In United States v. Marcus, 130 S. Ct. 2159, 2164 (2010),
quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009),
the United States Supreme Court explained the application of
plain error review in criminal cases in this fashion:
“an appellate court may, in its discretion, correct
an error not raised at trial only where the appel-
lant demonstrates that (1) there is an ‘error’; (2)
the error is ‘clear or obvious, rather than subject
to reasonable dispute’; (3) the error ‘affected the
appellant’s substantial rights, which in the ordinary
case means’ it ‘affected the outcome of the district
court proceedings’; and (4) ‘the error seriously
affect[s] the fairness, integrity or public reputation
of judicial proceedings.’”
application of olano in caSeS involving error in increaSing
Sentencing guideline range
In Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018),
the United States Supreme Court reviewed a case where, in
relying on a presentence investigation report, the district court
had erroneously double-counted a misdemeanor conviction of
the defendant. That error resulted in a sentencing guidelines
range higher than it otherwise would have been. Noting that
the sentence imposed on the defendant was merely one month
higher than the minimum sentence for the erroneous guide-
lines range and at the mid-to-lower end of the correct range,
the Fifth Circuit Court of Appeals, in applying the fourth Olano
prong provided above, had denied plain error reversal of the
defendant’s sentence, based on its view that “the types of errors
that warrant reversal are ones that would shock the conscience
of the common man, serve as a powerful indictment against
our system of justice, or seriously call into question the com-
petence or integrity of the district judge.” Rosales-Mireles, 138
S. Ct. at 1905.
In its review, the Supreme Court noted that the rst three
Olano conditions had been satised and that it was the fourth
condition it was asked to clarify and apply. The Court rejected
the Fifth Circuit’s application of the fourth condition, holding
that “[i]n articulating such a high standard, the Fifth Circuit
substantially changed Olano’s fourth prong.” Id. at 1907. In
addressing the issue of the burden of persuasion concerning
the fourth condition, the Court stated in a footnote that, “in the
ordinary case, proof of a plain Guidelines error that affects the
defendant’s substantial rights is sufcient to meet the burden
[of satisfying the fourth condition].” Id. at note 4. In reversing
the Fifth Circuit’s decision and remanding the case for renewed
sentencing procedures and stressing that “a sentence that lacks
reliability because of unjust procedures may well undermine
public perception of the proceedings” (id. at 1907), the Court
held that:
“the Fifth Circuit abused its discretion in applying
an unduly burdensome articulation of Olano’s
fourth prong and declining to remand Rosales-
Mireles’ case for resentencing. In the ordinary case,
as here, the failure to correct a plain Guidelines
error that affects a defendant’s substantial rights
will seriously affect the fairness, integrity, and
public reputation of judicial proceedings.” Id. at
1911.
The Supreme Court’s decision in Rosales-Mireles is consis-
tent with its earlier holding in Molina-Martinez v. United States,
136 S. Ct. 1338 (2016). There, the defendant’s sentencing
guidelines range in his presentence report was reported as 77 to
96 months, when, because of an error in calculation, it should
have been 70 to 87 months. Referring to the error in calculating
29ARTICLE I. GENERAL PROVISIONS RULE 103
the sentencing range and in remanding for resentencing, the
Court held that
“in most cases the Guidelines range will affect the
sentence. When that is so, a defendant sentenced
under an incorrect Guidelines range should be
able to rely on that fact to show a reasonable prob-
ability that the district court would have imposed
a different sentence under the correct range. That
probability is all that is needed to establish an
effect on substantial rights for purposes of obtain-
ing relief under Rule 52(b) [which addresses the
plain error rule].” Molina-Martinez, 136 S.Ct. at
1349.
For a Seventh Circuit decision that distinguishes Rosales-
Mireles and Molina-Martinez on the basis that the error in
calculating the defendant’s sentencing range was not affected
by a miscalculation, see United States v. Thomas, which is dis-
cussed in the second paragraph under the heading immediately
following.
other deciSionS applying olano
In two cases subsequent to Olano, the United States
Supreme Court addressed whether the plain error rule applies
to the ruling at trial or to the error that is “plain” at the time of
review. In Johnson v. U.S., 520 U.S. 461 (1997), the Supreme
Court held that, where a trial court’s decision was clearly
correct under circuit law when it was made (here, under circuit
precedent, that the materiality of a false statement was for the
trial court to determine), but at the time of review the decision
had become plainly erroneous due to an intervening authori-
tative legal decision (a Supreme Court decision that materiality
was for the jury’s determination), the law at the time of review
is to be applied, because “it is enough that an error be ‘plain’
at the time of appellate consideration.” Johnson, 520 U.S. at
468. Later, in Henderson v. U.S., 568 U.S. 266, 133 S. Ct. 1121
(2013), the Supreme Court likewise held that where the law is
unsettled at the time of the trial court error (here, whether an
increased sentence could be imposed to enable an offender
to complete a treatment program or otherwise to promote
rehabilitation) but plain at the time of review (a Supreme Court
decision that such sentencing was error), the plain error at the
time of review satises the second part of Olano’s four-part test.
For examples of Seventh Circuit decisions where the defen-
dant did not object at trial but failed to satisfy the requirements
of plain error review, see United States v. Thomas, 897 F.3d
807, (7th Cir. 2018) (though conceding error in sentencing
guideline calculations, holding there was no plain error requir-
ing a remand for resentencing, because a remand would result
in the same sentence of life imprisonment and, outside the
rule established in the Supreme Court’s decisions in Molina-
Martinez and Rosales-Mirales, the nal guideline range for
sentencing calculated by the trial court was correct); United
States v. Seifer, 200 F.3d 328 (7th Cir. 2015) (where, in violation
of Fed. R. Crim. P. 24(c), the district court erroneously allowed
the defendant to randomly select an alternate juror from among
the 13 jurors chosen, the convicted defendant, who had not
objected to that procedure, could not satisfy his burden to
show that he was prejudiced under plain error review); United
States v. Breshers, 684 F.3d 699 (7th Cir. 2012) (in the absence
of an objection, nding there was no plain error and upholding
restitution order that was based on a federal statute (18 U.S.C.
§ 3663A) that was ambiguous about whether physical injury
was necessary, where there was no physical injury, despite
two other circuit courts of appeal having held that physical
injury was necessary under the statute); United States v. Kirklin,
727 F.3d 711 (7th Cir. 2013) (defendant unable to establish
plain error concerning trial court’s imposition of mandatory
minimum penalty for brandishing a rearm without a jury’s
determination on that issue, because jury would likely have
found that element due to totality of evidence and defendant
could not satisfy the fourth Olano requirement, that “the error
seriously affected the fairness, integrity or public reputation of
judicial proceedings.”)
diStinction between waiver and forfeiture
In United States v. Doyle, 693 F.3d 769 (7th Cir. 2012),
the Seventh Circuit Court of Appeals provided this succinct
statement concerning the difference between waiver, which
precludes plain error review, and forfeiture, which permits such
review:
COMMENTARY CONTINUED
30RULE 103 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
Author’s Commentary on Ill. R. Evid. 103(e)
IRE 103(e) is identical to pre-amended FRE 103(d), which
now bears the designation of FRE 103(e) as a result of the
amendments to the federal evidence rules solely for stylistic
purposes that became effective December 1, 2011. The addi-
tion of IRE 103(b) on October 15, 2015 resulted in the re-desig-
nation of IRE 103(d) as IRE 103(e), the same 103(e) designation
as its federal counterpart.
The plain-error rule is designed to allow otherwise forfeited
appellate review of unpreserved error “affecting substan-
“The difference between waiver and forfeiture is
that waiver precludes review, whereas forfeiture
permits us to correct an error under a plain error
standard. United States v. Olano, 507 U.S. 725,
732–34, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993).
Forfeiture occurs by accident, neglect, or inadver-
tent failure to timely assert a right. Id.; United States
v. Cooper, 243 F.3d 411, 415–16 (7th Cir. 2001).
Waiver occurs when a defendant or his attorney
manifests an intention, or expressly declines, to
assert a right. Cooper, 243 F.3d at 415–16.”
diStinction between plain error and harmleSS error
The principles related to plain error review are discussed
above. Harmless error analysis is different. Where a defendant
in a criminal case has laid the foundation for preserving error
at trial (i.e., there was no forfeiture) and a reviewing court
determines that error indeed had occurred, the reviewing court
must then determine whether the error was harmless beyond a
reasonable doubt.
A long line of United States Supreme Court decisions has
established the test to be applied in harmless error analysis.
Some of those decisions, which reect the Court’s focus on the
effect of the error and with quotes that supply the applicable
standard, include: Kotteakos v. United States, 328 U.S. 750,
764-65 (1946) (“And the question is, not were they right in
their judgment, regardless of the error or its effect upon the
verdict. It is rather what effect the error had or reasonably may
be taken to have had on the jury’s decision.***The inquiry
cannot be merely whether there was enough to support the
result, apart from the phase affected by the error. It is rather,
even so, whether the error itself had substantial inuence.”);
Satterwhite v. Texas, 486 U.S. 249, 258-59 (1988) (“The ques-
tion, however, is not whether the legally admitted evidence
was sufcient to support the death sentence, which we assume
it was, but whether the State has proved beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” (Internal quotation marks omitted.)); Sullivan
v. Louisiana, 508 U.S. 275, 279 (1993) (“The inquiry, in other
words, is not whether, in a trial that occurred without the error,
a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to the error.”).
In United States v. Barber, 937 F. 3d 965, (7th Cir. 2019),
a prosecution involving stealing rearms from a federally
licensed rearm dealer, the Seventh Circuit found that the
district court had erred in admitting authenticating documents
prepared by ATF agents—to establish the element that the re-
arm dealer was currently licensed—in violation of the holdings
in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and
Bullcoming v. New Mexico, 564 U.S. 647 (2011). But, after
citing and applying Jones v. Basinger, 635 F.3d 1030, 1052 (7th
Cir. 2011), the court held that the error was harmless, hold-
ing that, in “a Confrontation Clause case, the harmless-error
inquiry rests on a variety of factors, including ‘the importance
of the witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecutor’s case.’” Barber, 937 F.3d at 969. Noting that the
owner of the rearm dealership produced a current federal
license and testied that the license was current, the court held
that any error in admitting the ATF records was harmless.
31ARTICLE I. GENERAL PROVISIONS RULE 103
tial rights” in the limited circumstances described in this
commentary.
relevant Supreme court ruleS
Two supreme court rules have relevance to this codied
evidence rule. Illinois Supreme Court Rule 451(c), which
addresses instructions given by the trial court in criminal cases
and is not, strictly speaking, an evidence-related rule, provides
that “substantial defects [in instructions] are not waived by
failure to make timely objections thereto if the interests of
justice require.” For an appellate court decision applying this
rule in reversing convictions for attempted rst degree murder
and aggravated battery, see People v. Cacini, 2015 IL App (1st)
130135, ¶¶ 32-59 (holding that where the defense of self-de-
fense was raised, the trial court erred in not instructing the jury
that the State bore the burden of proving beyond a reasonable
doubt that defendant’s use of force was not justied, and further
holding that the error satised the second prong of the plain
error doctrine (see discussion below) because the error denied
defendant a fair trial).
More relevant to the codied evidence rule and plain-error
review is Illinois Supreme Court Rule 615(a), which is an evi-
dence-related rule that applies in criminal cases. It reads:
“Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disre-
garded. Plain errors or defects affecting substantial
rights may be noticed although they were not
brought to the attention of the trial court.”
Similarity of illinoiS and federal plain error StandardS
As pointed out by the supreme court in People v. Herron,
215 Ill. 2d 167 (2005), Rule 615(a) is substantially identical to
Federal Rule of Criminal Procedure 52, and has been applied
in similar fashion. As further noted in Herron, the supreme
court holdings on plain error reect identical application of the
same standards provided by the United States Supreme Court’s
decisions in United States v. Cotton, 535 U.S. 625 (2002)
and United States v. Olano, 507 U.S. 725 (1993) (holding
that forfeited error may be noticed if there was (1) an error,
(2) that was plain, (3) that affected the defendant’s substantial
rights, and (4) that seriously affected the fairness, integrity, or
public reputation of judicial proceedings). See also People v.
Hollahan, 2020 IL 125091, ¶ 13 (reiterating the similarity in the
holding in Olano and the principles in Illinois “when it comes
to plain error review”).
triggering plain error review
The supreme court has referred to the plain error doctrine
as “a limited and narrow exception to the general rule of pro-
cedural default.” People v. Walker, 232 Ill. 2d 113, 124 (2009);
see also People v. Downs, 2015 IL 117934, ¶ 15. In People
v. Piatkowski, 225 Ill. 2d 551, 565 (2007), the supreme court
provided the standard for applying plain error review where an
issue has been forfeited:
“[T]he plain-error doctrine allows a reviewing
court to consider unpreserved error when (1) a
clear or obvious error occurred and the evidence is
so closely balanced that the error alone threatens
to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2)
a clear or obvious error occurred and that error
is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the
evidence.”
Later, in People v. McDonald, 2016 IL 118882, in addition
to the two separate prongs of plain error provided in the quote
above, the supreme court added these general principles:
“The rst step in a plain error analysis is to deter-
mine whether error occurred. People v. Cosby, 231
Ill. 2d 262, 273 (2008). Absent reversible error,
there can be no plain error. People v. Williams,
193 Ill. 2d 306, 349 (2000). The defendant has
the burden of persuasion on both the threshold
question of plain error and the question whether
the defendant is entitled to relief as a result of the
error. In re M.W., 232 Ill. 2d 408, 431 (2009).”
McDonald, at ¶ 48.
teSt for Second prong of plain error review
The second prong of the plain-error test has been equated
to “structural error,” which is “systemic error which serves to
erode the integrity of the judicial process and undermine the
fairness of the defendant’s trial.” People v. Glasper, 234 Ill.
COMMENTARY CONTINUED
32RULE 103 ARTICLE I. GENERAL PROVISIONS
2d 173, 197–98 (2009). But the Illinois Supreme Court has
made it clear that second-prong plain error is not restricted to
the six types of structural error that have been recognized by
the U.S. Supreme Court: “a complete denial of counsel; trial
before a biased judge; racial discrimination in the selection of
a grand jury; denial of self-representation at trial; denial of a
public trial; and a defective reasonable doubt instruction.” See
Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006); also
see People v. Thompson, 238 Ill. 2d 598, 609 (2010). In People
v. Averett, 237 Ill.2d 1, 13 (2010), for example, the supreme
court cited Glasper in holding, “We may determine an error
is structural as a matter of state law regardless of whether it is
deemed structural under federal law.”
Interestingly, the United States Supreme Court decision in
Weaver v. Massachusetts, 137 S.Ct. 1899 (2017), demonstrates
that even “structural error” may not, in certain circumstances,
result in a nding of error. In that case, because the courtroom
could not accommodate all the potential jurors for a murder
trial, members of the public who were not potential jurors were
excluded from the courtroom during jury selection. Among the
excluded persons were the defendant’s mother and her minister.
The defendant’s attorney made no objection to the exclusion,
the defendant was convicted, and the issue of the denial of
a public trial was not raised on direct appeal. The defendant
later collaterally attacked the judgment based on ineffective
assistance of counsel. Noting that its decision would likely
have been different if the issue had been preserved and raised
on direct appeal and, addressing the issue in the context of
the allegation of ineffective assistance of counsel, the Supreme
Court applied the second prong test of Strickland in holding
that the petitioner had failed to establish prejudice and it thus
afrmed the judgment of conviction. Weaver represents a clear
indication that even structural error may not lead to a nding
of plain error in federal courts. It thus presents another demon-
stration of the need for counsel to make a contemporaneous
objection to an erroneous court ruling.
Examples of supreme court decisions that did not involve
structural error but nonetheless applied second-prong plain
error include People v. Clark, 2016 IL 118845, ¶¶ 25, 46,
where, in agreeing with the appellate court that the defendant
should not have been convicted and sentenced for uncharged
offenses he did not commit, holding “although our decisions
in Glasper and Thompson equated second-prong plain error
with structural error, we did not restrict plain error to the types
of structural error that have been recognized by the Supreme
Court;” In re Samantha V., 234 Ill. 2d 359, 378-79 (2009), where
the failure to apply the one-act, one-crime rule constituted sec-
ond-prong plain error; People v. Walker, 232 Ill. 2d 113, 131
(2009), where the failure of the judge to exercise discretion in
denying a request for a continuance constituted second-prong
plain error, given the egregious facts in that case; and People
v. Hicks, 181 Ill. 2d 541, 545 (1998), where the imposition of
an unauthorized sentence affected substantial rights and thus
triggered second-prong plain error.
In People v. Lewis, 234 Ill.2d 32, 48-49 (2009), the supreme
court held that the imposition of a ne that contravenes a stat-
ute triggers second-prong plain error (but note that pursuant to
Ill. S. Ct. R. 472(e), added effective May 17, 2019, in appeals
led or pending since March 1, 2019, such an error raised for
the rst time on appeal is not to be addressed in the reviewing
court, but rather remanded to the circuit court for the ling of
an appropriate motion). And in People v. Fort, 2017 IL 118966,
¶ 19, the supreme court held that the imposition of a statutorily
prohibited adult sentence on a juvenile triggers second-prong
plain error.
deciSionS on general principleS related to plain error review
For a sampling of cases that discuss principles related to
whether plain error review should be granted, see People v.
Lewis, 234 Ill. 2d 32 (2009) (holding a reviewing court must
initially determine whether an error actually occurred; but
see People v. White, 2011 IL 109689, ¶¶ 139, 148, where, in
engaging in “a qualitative—as opposed to strictly quantitative—
commonsense assessment of the evidence” in determining that
the evidence was not closely balanced, holding that “[w]hen
it is clear that the alleged error would not have affected the
outcome of the case, a court of review need not engage in
the meaningless endeavor of determining whether error
occurred”); People v. Naylor, 229 Ill. 2d 584 (2008) (holding
burden of persuasion as to the two prongs is on party seeking
COMMENTARY CONTINUED
33ARTICLE I. GENERAL PROVISIONS RULE 103
plain-error review and, if burden cannot be carried, procedural
default must be honored).
See also People v. Hood, 2016 IL 118581 (nding that there
was no error, and thus no plain error, while rejecting defen-
dant’s contentions that his right to confront the victim-witness
had been violated and that there had been plain error in
admitting at trial the deposition of the incapacitated victim
under Ill. S. Ct. R. 414; and further holding that, in the face
of evidence that defendant waived his right to be present at
the victim’s deposition (where he was represented by counsel
who cross-examined the victim), his due process rights were
not violated and there was no plain error because of the failure
to obtain the written waiver required by S. Ct. R. 414(e)).
deciSionS on the cloSely balanced firSt prong teSt for plain
error review
In People v. Adams, 2012 IL 111168, the supreme court
cited White in holding that, in determining whether the closely
balanced prong has been met, the court makes a “common-
sense assessment” of the evidence within the context of the
circumstances of the individual case. In Adams, although
comments that were not objected to during the State’s nal
arguments were improper and constituted error, they did not
merit reversal of the conviction because neither prong of the
plain-error test was satised.
In People v. Belknap, 2014 IL 117094 the supreme court
had another opportunity to consider the principles provided
by White and Adams. In Belknap, the supreme court agreed
with the appellate court’s holding that the trial court committed
error in failing to comply with Supreme Court Rule 431(b) by
not asking prospective jurors whether they understood the four
principles set forth in that rule (commonly referred to as the
Zehr admonitions); but it also held, contrary to the appellate
court’s holding, that the evidence in the case was not closely
balanced, and thus plain error review was unwarranted.
In its 4-to-3 decision in People v. Sebby, 2017 IL 119445,
the supreme court held that a Rule 431(b) error (related to
jury-selection admonitions based on the Zehr principles) does
not trigger second-prong plain error. The court held, however,
that application of the rst prong of the plain error doctrine,
in a case such as this where the evidence was deemed to be
closely balanced, the trial court’s failure to ask the proper Zehr
questions of prospective jurors, as provided by Rule 431(b),
required reversal of a conviction for resisting a peace ofcer
and a remand for a new trial. In Sebby, the trial court had
advised prospective jurors of the Zehr principles but asked
whether they “had any problems with” or “believed in” the
four Zehr principles, rather than whether they “understood and
accepted” those principles. The court held that “prejudice rests
not upon the seriousness of the error but upon the closeness of
the evidence. What makes an error prejudicial is the fact that
it occurred in a close case where its impact on the result was
potentially dispositive.” Sebby, at ¶ 68. The court also rejected
the contention that the nal instruction given to the jury under
IPI Criminal 4th No. 2.03, which recites the Zehr admonitions,
did not cure the error that occurred in not properly asking
prospective jurors about the Zehr principles.
In People v. Lucas, 2019 IL App (1st) 160501, the appellate
court held that second-prong plain error occurred when, during
a bench trial, because it could not be done in the courtroom,
the trial court and the State and defense counsel reviewed in
chambers and outside the defendant’s presence—without any
commentary or argument—a videotape of the defendant’s
trafc stop (which was relevant to the charged offenses). With
one judge dissenting, the appellate court held that, though the
defendant was advised that the video would be reviewed by
the trial court and lawyers outside her presence and she did
not object, she did not knowingly waive her right to be present
for the viewing because she was not informed of that right. The
court held that reversal and remand were necessary because
the defendant was deprived of her right to be present during a
critical stage of the proceedings.
In both People v. Sargent, 239 Ill. 2d 166 (2010), and People
v. Marcos, 2013 IL App (1st) 111040, the courts addressed the
plain error doctrine in situations where: (1) hearsay statements
made by children who were victims of sexual offenses were
admitted under the exception provided by section 115-10 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10;
see Appendix U); (2) the trial court had not given the jury an
instruction required by section 115-10(c) of the Code (see
IPI Criminal 4th No. 11.66, which implements the statutory
COMMENTARY CONTINUED
34RULE 103 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
requirement); and (3) the defendant did not submit the required
instruction or object to the trial court’s failure to give it to the
jury. Both the supreme court in Sargent and the appellate court
in Marcos held that, although the error in the trial court’s not
giving the jury instruction was denitely clear and obvious, an
analysis of the record established that the evidence was not
closely balanced and thus the error did not rise to the level of
plain error.
cumulative error
In cases where neither prong of the plain error analysis
applies, defendants frequently contend that the trial’s cumu-
lative errors requires reversal. In People v. Speight, 153 Ill. 2d
365, 376 (1992), though it rejected the defendant’s contention
that cumulative errors required reversal, the supreme court
reasoned that, “while individual trial errors may not require a
reversal, those same errors considered together may have the
cumulative effect of denying defendant a fair trial.”
Though the invocation of such error is usually unsuccessful,
a primary example of cumulative error resulting in reversal is
People v. Blue, 189 Ill. 2d 99 (2000) (applying due process
considerations and employing the same test used when a
reviewing court applies the second prong of the plain error
test, and reasoning that the State’s arguments “encouraged the
jury to return a verdict grounded in emotion, and not a rational
deliberation of the facts,” holding that cumulatively, the errors
created a pervasive pattern of unfair prejudice to defendant’s
case).
ramirez: admonition concerning need for care by trial counSel
in preServing error
In People v. Ramirez, 2015 IL App (1st) 130022, an appeal
alleging trial court error that resulted in a longer sentence,
where the appeal was based on the assertion of plain error
because of the defendant’s failure to raise the issue in the
trial court, the appellate court denied the defendant’s claim,
responding in words that should serve as notice to trial counsel
about the need to exercise care in preserving issues for review:
“We do no favors to the criminal bar to routinely
bypass forfeiture to consider forfeited issues on
their merits. Habitually excusing the failure to pre-
serve errors for review under the plain-error doc-
trine (i) minimizes the importance of trial counsel’s
vigilance to identify and preserve objections in
order to facilitate appellate review, (ii) undermines
the ability of trial counsel to address and, if nec-
essary, correct claimed errors, and (iii) results in
an ever-growing body of largely hypothetical legal
analysis, i.e., if counsel had timely preserved the
error now raised on appeal, then this is how we
wold resolve the issue. The more often we honor
the rule of procedural default and the more fre-
quently we conne plain-error to its intentionally
‘narrow and limited’ scope, the better and more
cogent our analysis of concrete appellate issues
will be.” Ramirez, at ¶ 27 (emphasis in original).
diStinction between waiver and forfeiture
In People v. Phipps, 238 Ill. 2d 54, 62 (2010), the supreme
court spelled out the difference between waiver and forfeiture
in this manner:
“Waiver is distinct from forfeiture, however. While
forfeiture applies to issues that could have been
raised but were not, waiver is the voluntary relin-
quishment of a known right.”
Later, in People v. Hughes, 2015 IL 117242, the supreme
court explained the difference in these terms:
“We should acknowledge that these two terms
[waiver and forfeiture] have been used inter-
changeably at times, particularly in the criminal
context, despite representing distinct doctrines. ‘As
this court has noted, there is a difference between
waiver and forfeiture. While waiver is the volun-
tary relinquishment of a known right, forfeiture
is the failure to timely comply with procedural
requirements. [Citations.] These characterizations
apply equally to criminal and civil matters.’”
Citing Buenz v. Frontline Transportation Co., 227
Ill. 2d 302, 320 n.2 (2008). Hughes, at ¶ 37.
In People v. Sophanavong, 2020 IL 124337, the court stated
this:
“Over the years, this court has noted that the
terms forfeiture and waiver have, at times, been
35ARTICLE I. GENERAL PROVISIONS RULE 103
COMMENTARY CONTINUED
used interchangeably, and often incorrectly, in
criminal cases. People v. Hughes, 2015 IL 117242,
¶ 37; People v. Blair, 215 Ill. 2d 427, 443 (2005).
Forfeiture is dened ‘as the failure to make the
timely assertion of [a] right.’ People v. Lesley,
2018 IL 122100, ¶ 37; see also Buenz v. Frontline
Transportation Co., 227 Ill. 2d 302, 320 n.2 (2008)
(stating ‘forfeiture is the failure to timely comply
with procedural requirements’). Waiver, on the
other hand, ‘is an intentional relinquishment
or abandonment of a known right or privilege.’
Lesley, 2018 IL 122100, ¶ 36.” Sophanavong, at
¶ 20.
The distinction between waiver and forfeiture (which, as
the above quotes indicate, in many decisions frequently and
incorrectly is labeled “waiver”) is important because proce-
dural forfeiture may nevertheless allow plain error review,
whereas the voluntary surrender of a known right will not. See
e.g., People v. Smith, 2019 IL App (1st) 161246, ¶ 50 (citing
supreme court and other appellate court decisions in holding
“[w]hether we couch it in terms of ‘waiver’ or ‘invited error,’
plain-error review of that action is not available”) Also, forfei-
ture “is a limitation on the parties and not on [the reviewing]
court, which has a responsibility to achieve a just result and
maintain a sound and uniform body of precedent.” Pederson
v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 44
citing O’Casek v. Children’s Home & Aid Society of Illinois, 229
Ill. 2d 421, 438 (2008).
diStinction between harmleSS error and plain error
In a criminal case addressing whether reversible error had
been committed because of an Apprendi violation, the supreme
court noted that, in addition to the threshold determination
concerning the applicability of plain error or harmless error
analysis depending on whether the defendant did or did not
make a timely trial objection based on the alleged error,
“[a]n ‘important difference’ between the two anal-
yses lies in the burden of proof: in harmless-error
analysis, the State must prove that the jury verdict
would have been the same absent the error to
avoid reversal, whereas under plain-error analysis,
a defendant’s conviction and sentence will stand
unless the defendant shows the error was preju-
dicial.” People v. Crespo, 203 Ill. 2d 335, 347-48
(2003).
The simple test for harmless error analysis is not whether
the prosecution produced sufcient evidence to support a
conviction, but whether the error may have swayed the jury’s
judgment. The overall strength of the prosecution’s evidence
constitutes an important factor in making this determination.
In People v. Lerma, 2016 IL 118496, the supreme court
provided the following standard for determining harmless error
where evidence was excluded:
“This court has recognized three approaches to
determine whether an error such as this is harm-
less beyond a reasonable doubt: (1) whether the
error contributed to the defendant’s conviction;
(2) whether the other evidence in the case over-
whelmingly supported the defendant’s conviction;
and (3) whether the excluded evidence would
have been duplicative or cumulative.” Lerma, at
¶ 33.
plain error review in civil caSeS
Although the plain error doctrine generally is applied in
criminal cases, it applies in civil cases as well. See Gillespie
v. Chrysler Motors Corp., 135 Ill. 2d 363 (1990), where the
supreme court noted that plain error review in a civil case
was rst applied by that court in Beleld v. Coop, 8 Ill. 2d 293
(1956), where the court held:
“If prejudicial arguments are made without objec-
tion of counsel or interference of the trial court to
the extent that the parties litigant cannot receive
a fair trial and the judicial process stand without
deterioration, then upon review this court may
consider such assignments of error, even though
no objection was made and no ruling made or
preserved thereon.”
In Gillespie, the supreme court held that “we will strictly
apply the waiver doctrine unless the prejudicial error involves
agrant misconduct or behavior so inammatory that the jury
verdict is a product of biased passion, rather than an impar-
36RULE 103 ARTICLE I. GENERAL PROVISIONS
tial consideration of the evidence.” In reviewing prior cases,
the Gillespie court concluded that “[i]n each of [those civil
cases] where a new trial was awarded, the prejudicial error
was so egregious, that it deprived the complaining party of a
fair trial and substantially impaired the integrity of the judicial
process itself.” The court noted: “The cases where we applied
the Beleld standard and awarded a new trial involved blatant
mischaracterizations of fact, character assassination, or base
appeals to emotion and prejudice.”
Standard of review for evidentiary iSSueS
Although IRE 103(e) is directly relevant to appellate pro-
ceedings, trial judges and attorneys must know the standard
of review for evidentiary issues, for it illustrates the deference
accorded trial courts in their rulings on the admission of evi-
dence. The standard is succinctly stated by the supreme court
in People v. Becker, 239 Ill. 2d 215 (2010):
“The admission of evidence is within the sound
discretion of a trial court, and a reviewing court
will not reverse the trial court absent a showing of
an abuse of that discretion. [Citations.] An abuse
of discretion occurs where the trial court’s deci-
sion is arbitrary, fanciful or unreasonable [citation]
or where no reasonable person would agree with
the position adopted by the trial court [citations].
Decisions of whether to admit expert testimony
are reviewed using this same abuse of discretion
standard. [Citations.]”
In United States v. Groce, 891 F.3d 260, (7th Cir. 2018),
the Seventh Circuit offered this explanation for the abuse of
discretion standard for evidentiary rulings:
“Abuse of discretion is, of course, a highly def-
erential standard. We give special deference to
evidentiary rulings because of the trial judge’s rst-
hand exposure to the witnesses and the evidence
as a whole, and because of the judge’s familiarity
with the case and ability to gauge the impact of
the evidence in the context of the entire proceed-
ing. A trial court abuses its discretion when no
reasonable person could take the view adopted by
the trial court.” Groce, 891 F.3d at 268 (internal
citations and quotation marks omitted).
Note that many Illinois Supreme Court decisions require
a “clear showing” that the trial court abused its discretion in
order to overturn a ruling on the admissibility of evidence.
See e.g., People v. Cookson. 215 Ill. 2d 194 (2005). Note also
that, although Becker and many other supreme and appellate
court decisions present the generally accepted standard quoted
above for the admission of evidence, an additional basis for a
reviewing court’s nding error in the admission of evidence
occurs where the trial court’s ruling rests on an error of law.
Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d
15, 24 (2009) (“A circuit court abuses its discretion when it
makes an error of law. See Koon v. United States, 518 U.S.
81, 100, 116 S. Ct. 2035, 2047, 135 L.Ed.2d 392, 414 (1996)
(where the Supreme Court explained that ‘[l]ittle turns *** on
whether we label review of this particular question abuse of
discretion or de novo, for an abuse-of-discretion standard does
not mean a mistake of law is beyond appellate correction’”).
Where admissibility turns on a question of law, the standard
of review is de novo. See, e.g., People v. Hall, 195 Ill. 2d 1, 21
(2000); People v. Williams, 188 Ill. 2d 365, 369 (1999).
COMMENTARY CONTINUED
37ARTICLE I. GENERAL PROVISIONS RULE 104
Rule 104. Preliminary Questions
(a) In General. e court must decide any prelim-
inary question about whether a witness is qualied, a
privilege exists, or evidence is admissible. In so decid-
ing, the court is not bound by evidence rules, except
those on privilege.
(b) Relevance at Depends on a Fact. When
the relevance of evidence depends on whether a fact
exists, proof must be introduced sucient to support
a nding that the fact does exist. e court may admit
the proposed evidence on the condition that the proof
be introduced later.
(c) Conducting a Hearing So at the Jury Can-
not Hear It. e court must conduct any hearing on a
preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a
confession;
(2) a defendant in a criminal case is a witness and
so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal
Case. By testifying on a preliminary question, a
defendant in a criminal case does not become subject to
cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibil-
ity. is rule does not limit a party’s right to introduce
before the jury evidence that is relevant to the weight or
credibility of other evidence.
Rule 104. Preliminary Questions
(a) Questions of Admissibility Generally. Pre-
liminary questions concerning the qualication of a
person to be a witness, the existence of a privilege, or
the admissibility of evidence shall be determined by the
court, subject to the provisions of subdivision (b). In
making its determination, the court is not bound by the
rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the
relevancy of evidence depends upon the fulllment of
a condition of fact, the court shall admit it upon, or
subject to, the introduction of evidence sucient to
support a nding of the fulllment of the condition.
(c) Hearing of Jury. Hearings on the admissibility
of confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary mat-
ters shall be so conducted when the interests of justice
require, or when an accused is a witness and so requests.
(d) Testimony by Accused. e accused does not,
by testifying upon a preliminary matter, become subject
to cross-examination as to other issues in the case.
(e) Weight and Credibility. is rule does not limit
the right of a party to introduce before the jury evidence
relevant to weight or credibility.
COMMENTARY
Author’s Commentary on Fed. R. Evid. 104(a)
Cobige v. City of ChiCago: a primer for thinking about and
applying the ruleS of evidence
Although it does not refer to Rule 104(a), the Seventh
Circuit decision in Cobige v. City of Chicago, et al., 651 F.3d
780 (7th Cir. 2011), is instructive regarding the admissibility
of evidence under both federal and Illinois rules. In that case,
a jury awarded $5 million in compensatory damages and
$4,000 in punitive damages to the plaintiff, who sued as the
son and special representative of the estate of his mother. The
mother, who had been arrested on a drug charge and was held
in a police lockup before court presentation, was allowed by
police to suffer untreated pain, ultimately leading to her death.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
38RULE 104 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
The Seventh Circuit afrmed the jury’s nding on liability, but
vacated the damages award, ruling that the district court’s
evidentiary rulings had prejudiced the defendants’ efforts to
counter the plaintiff’s testimony related to damages for loss of
companionship and for loss of the enjoyment of life.
The plaintiff, who was 27 years old when his mother died,
testied that “she had been a friend as well as a parent, a bul-
wark of support and a role model throughout his life.” He also
testied that “she provided wise advice and support” to him
and that “she taught me mostly everything I know. Everything
she knew she tried to instill in me.” The defendants (the city
of Chicago and four police ofcers) sought to counter that
evidence by introducing proof that the mother had been a
drug addict who had been in trouble with the law for much
of her adult life and had spent multi-year stretches in prison.
The district court admitted the evidence of one of the mother’s
convictions, but excluded evidence of other convictions and
about her drug addiction and arrest record. As a result, the jury
did not learn that the plaintiff’s mother had been sentenced
to four years’ imprisonment for two drug offenses in 1998,
and that shortly after her release she was arrested again and
convicted in 2001 for another drug offense, for which she was
sentenced to three years’ imprisonment. Her death occurred in
2006, while she was in custody for a drug offense.
The Seventh Circuit rejected the district court’s refusal to
allow evidence of the mother’s convictions, drug addiction,
and arrests based on the district court’s reliance on FRE 609(b),
404(b), and 403. The Seventh Circuit held that the proffered
evidence was necessary to undermine the plaintiff’s testimony,
and that the three rules relied upon by the district court to deny
admissibility were inapplicable.
As for the district court’s invocation of FRE 609(b) (related to
the inadmissibility, for impeachment purposes, of a conviction
more than 10 years old) the Seventh Circuit pointed out that the
defendants did not seek admission of the mother’s conviction
“for the purpose of attacking the character or truthfulness of
a witness,” for the simple reason that the mother was not a
witness. The rule therefore could not be used as a basis for
exclusion of the evidence.
As for FRE 404(b), the Seventh Circuit pointed out that the
defendants “did not offer the evidence about imprisonment,
arrests, and addiction to show that [the mother] acted ‘in con-
formity therewith’ on a different occasion.” In other words, the
defendants did not offer the evidence of the commission of a
crime to establish the mother’s propensity to commit another
crime, but rather to show “how much [the mother’s] estate
and son suffered by her death.” In short, because the mother’s
character and life prospects were placed in issue by her son’s
testimony, the defendants were entitled to introduce evidence
to counter that evidence.
As for FRE 403, the Seventh Circuit stated: “When the law
makes damages depend on matters such as the emotional tie
between mother and son, the defendant is entitled to show
that the decedent’s character aws undermined the quality of
advice and support that she could have supplied.” This, the
court held, did not constitute “prejudice” at all. And it certainly
was not “unfair prejudice.”
The Seventh Circuit concluded that the exclusion of
evidence “that could have signicantly reduced the award of
damages cannot be called harmless.” It therefore vacated the
damages awarded and remanded the case to the district court
for a new trial solely on the issue of damages.
According to newspaper reports, in December 2011, the
Chicago City Council approved a settlement in this case in the
amount of $2.02 million.
Author’s Commentary on Ill. R. Evid. 104(a)
IRE 104(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for the clarifying substitution of “the court”
for “it” in the last sentence, which was a change also made in
the amended federal rule. The rule requires the court to decide
preliminary questions relating to the qualications of a witness,
the existence of a privilege, and admissibility of evidence gen-
erally and, except for rulings on privilege, provides that the
39ARTICLE I. GENERAL PROVISIONS RULE 104
court is not bound by the rules of evidence in doing so. Thus,
where the preliminary question to be decided by the court is
based on a factual determination, the rules of evidence (priv-
ilege excepted) do not apply during the hearing to determine
admissibility. This principle is reinforced by IRE 1101(b)(1),
which refers to “Rule 104” and is substantially identical to IRE
104(a). Indeed, “the trial court may consider hearsay evidence,
including the unavailable witness’s hearsay statements.” People
v. Peterson, 2017 IL 120331, ¶ 44, citing the rule, People v.
Stechly, 225 Ill. 2d 246, 278 (2007), and Davis v. Washington,
547 U.S. 813, 833 (2006).
The proponent of evidence bears the burden of proving the
necessary elements for admissibility. People v. Torres, 2012 IL
111302, ¶ 53; People v. Cookson, 215 Ill. 2d 194, 204 (2005).
PeoPle v. taylor: application of ire 104(a) and blueprint for
admiSSibility of video recording
Given modern advances in technology, the supreme court’s
decision in People v. Taylor, 2011 IL 110067, is worthy of note.
In that case, the court reversed the appellate court’s holding
that a surveillance videotape recording had been improperly
admitted at trial (under the “silent witness” theory, where a
photo or video shown to be accurate is admissible as speaking
for itself), on the basis that a proper foundation had not been
laid. The appellate court had reached this determination based
on its conclusion that, for many reasons, the State had failed to
establish the reliability of the process that produced the tape. In
its analysis, the supreme court rst held that, as in other admis-
sion-of-evidence determinations, the proper standard of review
is abuse of discretion, not de novo. It then approved of the
six factors that the appellate court had applied in determining
the reliability of the videotape, but emphasized that “this list
of factors is nonexclusive,” because one of them “may not be
relevant or additional factors may be needed to be considered.”
Taylor, at ¶ 35. In short, the individual circumstances involved
in each case need to be considered by the trial court to deter-
mine the accuracy and reliability of the process that produces
a recording. Id.
The supreme court then found fault with much of the
appellate court’s analysis, noting among other things, the
provisions of IRE 104(a) that a preliminary question such as
the admissibility of evidence “is not constrained by the usual
rules of evidence.” Taylor, at ¶ 40. Thus, the court held, the
appellate court erred in not considering a police report that,
though not admitted in evidence at trial, was relevant on the
questions related to the copying process of the videotape (from
DVR to VHS tape) and to the sufciency of its chain of custody.
Id. at ¶¶ 40-41.
Regarding the appellate court’s determination that the
videotape was inadmissible because of chain-of-custody
problems, the supreme court pointed out that, as “this court
has repeatedly stated … gaps in the chain of custody go to the
weight of the evidence, not its admissibility.” Id. at ¶ 41.
Next, the supreme court disagreed with the appellate court’s
holding that the tape was inadmissible because the original
recording had not been preserved. The court pointed out that,
under IRE 1001(2), a videotape copy of another recording
qualies as an original. Id. at ¶¶ 42-43.
Finally, the supreme court held that the appellate court’s
conclusion that the tape should not have been admitted because
“the State failed to establish that no alterations, deletions or
changes had been made when the original DVR recording was
copied to the videotape” was an “overly restrictive” require-
ment. Id. at ¶ 44 (emphasis in original). The court reasoned
that “some editing may be necessary to make the evidence
admissible in the rst place” and that “most editing will not
render evidence inadmissible but rather will go to the weight of
that evidence.” Id. The court concluded: “The more important
criteria is that the edits cannot affect the reliability or trustwor-
thiness of the recording. In other words, the edits cannot show
that the recording was tampered with or fabricated.” Id.
application of taylor
In People v. Stoppelwerth, 2014 IL App (4th) 131119, a case
involving a petition for adjudication of wardship, an off-duty
sheriff’s deputy viewed on his iPad a live-feed webcam that
showed a man engaged in sexual conduct and sexually abusing
the respondent’s son in the defendant’s presence. Though there
was no tape-recording of what the deputy saw, 12 archived still
images were retrieved and admitted into evidence. On appeal
from the trial court’s nding of abuse and neglect and its award
of custody and guardianship of her son to DCFS, the respon-
COMMENTARY CONTINUED
40RULE 104 ARTICLE I. GENERAL PROVISIONS
dent argued that the silent witness theory should have resulted
in the inadmissibility both of the deputy’s testimony about
what he viewed on the webcam and of the still images from
the webcam archive. Citing and applying Taylor, the appellate
court rejected the respondent’s arguments. The court rst held
that there was no need to satisfy the nonexclusive list of factors
supplied by Taylor for determining the reliability of the process
by which a videotape or photo was produced, because the
deputy’s testimony and the respondent’s admissions established
the accuracy and reliability of the process used to create the
images. As for the deputy’s testimony, the appellate court held
that the silent witness theory did not apply simply because the
deputy’s testimony about what he viewed on the live feed of the
webcam was not a video recording.
For another appellate court decision addressing the admis-
sion of a video and relying on Taylor, see In re D.Q. and J.C.,
Minors, 2016 IL App (1st) 16680 (in an abuse and neglect case,
holding that there was a proper foundation for the admission
of a video of a mother repeatedly striking her three-year-old
daughter with a spatula and stick).
In People v. Smith, 2021 IL App (5th) 190066, the three jus-
tices expressed interesting and different views on the issues they
were confronting. Without addressing in detail the facts in this
case, sufce it to say that the issue in this residential burglary
prosecution was focused on a surveillance videotape recording
of the front door of the burglarized apartment. Unfortunately,
the owner of the building in which the burglarized apartment
was located was unable to preserve the approximate 20-minute
videotape of the burglarized apartment, but his wife recorded
two 20-to-30 second clips of the recording on her iPhone.
The rst clip showed defendant approaching the door of the
burglarized apartment; the second clip showed defendant
exiting that apartment while carrying a white bag. The owner
of the building testied about the entire videotape and the two
clips captured on his wife’s iPhone, testifying that the videotape
showed no one else around or near the burglarized apartment
door. The resident of the apartment testied about his missing
property, that the door to his apartment had been locked, that
he had not given permission to anyone to enter his apartment,
and that he discovered his window had been pushed off the its
bottom tracks.
The author of the lead opinion contended that defendant
had not challenged the foundation of the iPhone clips on
appeal and that if he had done so, the Taylor decision would
have applied. That justice contended that instead “[t]he only
issue on appeal concerning the iPhone clips is whether their
admission violated the best evidence rule.” Smith, at ¶ 52.
Applying principles in IREs 1001 through 1004, he concluded
that “the trial court did not err in admitting two nonconsecu-
tive iPhone clips of the surveillance footage where a witness
testied to their accuracy compared to the original surveillance
footage.” Id. at ¶ 78. The specially concurring justice agreed
with the lead author’s best evidence analysis and that the trial
court did not err in admitting the iPhone clips, but he reached
the latter conclusion based on the different ground that the
admission of the clips fully complied with the supreme court’s
holding in Taylor. The dissenting justice contended that there
was insufcient compliance with Taylor and also found fault
with the best evidence analysis.
For other cases that address the “silent witness” theory as
related to the admissibility of lay opinion testimony, see the
Author’s Commentary on Ill. R. Evid. 701.
PeoPle v. Parker: example of applying ire 104(a) for eStabliShing
a foundation for admitting evidence
In People v. Parker, 2019 IL App (3rd) 160455, in response to
the State’s intention to admit evidence that defendant’s nger-
print was on a wine glass in the victim’s apartment where the
alleged armed robbery had occurred, defendant led a motion
in limine to prevent the State from introducing evidence that
would reveal that defendant’s ngerprint was obtained from a
prior arrest and thus would lead to inferences concerning his
prior arrest record. During trial, the State presented evidence by
the ngerprint analysis expert that the ngerprint on the glass
matched defendant’s ngerprint, without providing information
to the jury as to the source of defendant’s known ngerprint.
On appeal, defendant contended that the trial court had erred
in admitting that evidence without a proper foundation for its
admission. The appellate court noted that at a pretrial discus-
sion the source of defendant’s ngerprint was disclosed and the
COMMENTARY CONTINUED
41ARTICLE I. GENERAL PROVISIONS RULE 104
trial court had “ruled that the ngerprints would be admitted
into evidence, with the caveat that the State should not discuss
their source.” Parker, at ¶ 48. In afrming the admission of the
evidence of the ngerprint comparison based upon the trial
court’s pretrial determination, the appellate court relied on IRE
104(a)’s requirement that “preliminary questions concerning
*** the admissibility of evidence shall be determined by the
court.” Id. at ¶ 44. The court also cited IRE 103(d)’s requirement
to “prevent inadmissible evidence from being suggested to the
jury by any means” and IRE 104(c)’s similar requirement. Id.
Parker establishes that under IRE 104(a) a pretrial court
determination that there is a proper foundation for the admis-
sion of evidence renders unnecessary the presentation of
the foundation for the jury, especially where the foundation
evidence may be prejudicial to the defendant.
But Parker offered another notable ruling. When the State
offered a second ngerprint analysis expert to corroborate the
testimony of the other expert, the trial court cut off questioning
on the witness’s expert qualications, stating that “such ques-
tioning should have been completed prior to trial” and, over
defendant’s objections, the court found the witness qualied
as an expert. Id. at ¶ 52. The appellate court held that this
was error, but that the error was cured when defense counsel
elicited the witness’s qualications on cross-examination.
The appellate court provided this principle regarding the trial
court’s erroneous ruling: “There is no rule or statute mandating
that such a foundation be established prior to trial, or that a
witness be ruled qualied in a pretrial order.” Id. at ¶ 54.
Author’s Commentary on Ill. R. Evid. 104(b)
IRE 104(b) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The rule, which is easier to understand through the federal
rule’s revised wording, allows admissibility of evidence based
upon a party’s representation that the subsequent production
of evidence will establish the relevancy of the evidence earlier
admitted. See Marvel Eng’g Co. v. Commercial Union Ins. Co.,
118 Ill. App. 3d 844 (1983) (applying FRE 104(b)).
This often overlooked (but very useful) rule provides
the method for establishing the “conditional relevancy” for
introducing evidence in chronological order, which usually
is more persuasive than jumping ahead in time to establish
foundational requirements and then returning to an earlier
chronological time to present evidence relevant to the issues,
a process that can be confusing to jurors who are unaware of
(and unconcerned with) a party’s need to establish foundational
requirements for admitting evidence.
Author’s Commentary on Ill. R. Evid. 104(c)
IRE 104(c) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. The rule codies the commonsense requirement that
hearings be held out of the presence of the jury when they
concern the admissibility of confessions, matters involving the
testimony of a criminal defendant who requests a hearing on a
preliminary matter out of the jury’s presence, and those matters
that justice requires to be out of the jury’s hearing. The rule
is generally applied in criminal cases, but the portion of the
second sentence, which requires that hearings on preliminary
matters “shall be so conducted [i.e., “out of the hearing of the
jury”] when the interests of justice require,” applies equally to
civil cases.
Author’s Commentary on Ill. R. Evid. 104(d)
IRE 104(d), which is identical to the federal rule before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011, provides subject-matter protection for a
defendant who testies about a preliminary matter concerning
admissibility of evidence in a criminal case.
For a relevant case, where the appellate court held that IRE
104(d) had not been violated, see People v. Maxey, 2018 IL
App (1st) 130698, ¶¶ 84-93 (in a suppression hearing where
the questioning by the State had relevance to defendant’s
coming from the direction where a residential burglary had just
occurred, though defendant had not testied about where he
COMMENTARY CONTINUED
42RULE 104 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
had been before his car was stopped by police, it was proper
for the prosecutor to ask where defendant had been prior to
entering the road on which he was stopped, where defendant
had testied that he was legally driving northbound on the road
but a police ofcer testied that he observed defendant driving
southbound on the same road and making an illegal U-turn).
Author’s Commentary on Ill. R. Evid. 104(e)
IRE 104(e) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. In allowing evidence related to the weight of admitted
evidence, the rule is consistent with the principle that admis-
sibility of evidence is separate from considerations concerning
the weight or credibility of the evidence.
43ARTICLE I. GENERAL PROVISIONS RULE 105
Author’s Commentary on Ill. R. Evid. 105
IRE 105 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for the non-substantive addition of the words
“purpose or” between the word “proper” and the word “scope”
at the end of the rule for the purpose of clarity. The Notes of the
Advisory Committee on Rules (1972) offer this insight concern-
ing the purpose of the rule:
“A close relationship exists between this rule
and Rule 403 which requires exclusion when
‘probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury.’ The present rule recognizes
the practice of admitting evidence for a limited
purpose and instructing the jury accordingly. The
availability and effectiveness of this practice must
be taken into consideration in reaching a decision
whether to exclude for unfair prejudice under Rule
403.”
In United States v. Abel, 469 U.S. 45, 56 (1984), the United
States Supreme Court held, “there is no rule of evidence which
provides that testimony admissible for one purpose and inad-
missible for another purpose is thereby rendered inadmissible;
quite the contrary is the case.” And in People v. Monroe, 66 Ill.
2d 317, 322-23 (1977) the Illinois Supreme Court held:
“It is the long-established rule that evidence
admissible for one purpose cannot be excluded
for the reason that it would not be admitted for
another purpose, and that the party against whom
it is admitted may tender instructions appropri-
ately limiting the purpose for which it may be
considered.”
For relevant cases, see People v. Lucas, 132 Ill. 2d 399
(1989) (opposing party entitled to a limiting instruction); People
v. Gacho, 122 Ill. 2d 221, 253 (1988) (generally, court has no
duty to give a limiting instruction on its own); People v. Gordon,
2017 IL App (3d) 140770, ¶¶ 31-32 (discussing propriety of the
trial court’s giving a limiting instruction concerning defendant’s
earlier statement to his wife of his desire to have sex in the
presence of his young son as a teaching tool, in prosecution
for sexual exploitation of a child based on defendant’s subse-
quently having sex with his girlfriend in presence of his son,
and holding that trial court was in fact required by IRE 105 to
provide the limiting instruction to ensure that jury understood
that defendant’s earlier statements were evidence only of his
state of mind).
See also United States v. Robinson, 724 F.3d 878 (7th Cir.
2013), where, despite the parties’ stipulation to a limiting
instruction, the trial court failed to orally provide the jury with
the instruction that the defendant’s prior conviction for a felony
offense should be considered merely for the limited purpose
of assessing whether the defendant was a convicted felon, an
element of the charged offense of possession of a rearm by
a felon. In reversing the defendant’s conviction, the Seventh
Circuit placed special emphasis on the use of the word “must”
Rule 105. Limiting Evidence at Is Not
Admissible Against Other Parties or for Other
Purposes
If the court admits evidence that is admissible against
a party or for a purpose—but not against another party
or for another purpose—the court, on timely request,
must restrict the evidence to its proper scope and
instruct the jury accordingly.
Rule 105. Limited Admissibility
When evidence which is admissible as to one party
or for one purpose but not admissible as to another
party or for another purpose is admitted, the court,
upon request, shall restrict the evidence to its proper
purpose or scope and instruct the jury accordingly.
COMMENTARY
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
44RULE 105 ARTICLE I. GENERAL PROVISIONS
COMMENTARY CONTINUED
in FRE 105, as amended December 1, 2011 (where the word
“must” replaced the word that had been “shall” in the pre-
amended version), and expressed concern that the jury might
have interpreted the standard instruction, concerning its ability
to draw reasonable inferences from the evidence, to reasonably
infer that the defendant, as a convicted felon in a case where
possession was disputed, was more likely to have possessed the
rearm than not.
45ARTICLE I. GENERAL PROVISIONS RULE 106
Rule 106. Remainder of or Related Writings or
Recorded Statements
If a party introduces all or part of a writing or
recorded statement, an adverse party may require the
introduction, at that time, of any other part — or any
other writing or recorded statement — that in fairness
ought to be considered at the same time.
Rule 106. Remainder of or Related Writings or
Recorded Statements
When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part
or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.
Author’s Commentary on Ill. R. Evid. 106
IRE 106 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The rule is an expression of the rule of completeness. It is
limited to writings and recorded statements. It does not apply to
non-recorded oral statements—but note the trial court’s ability
under Rule 611(a) to “make the interrogation and presentation
effective for the ascertainment of the truth.” The Notes of the
Advisory Committee on Rules (1972) provides this explanation
for the rule:
“The rule is based on two considerations. The rst
is the misleading impression created by taking
matters out of context. The second is the inade-
quacy of repair work when delayed to a point
later in the trial. [Citations.] The rule does not in
any way circumscribe the right of the adversary to
develop a matter on cross-examination or as part
of his own case.”
common-law limitation and broader rule
See Supreme Court Rule 212(c), which provides for the use
or reading of other parts of a deposition, and Lawson v. G.D.
Searle & Co., 64 Ill. 2d 543, 556 (1976), regarding the princi-
ple in general (but without reference to “any other writing”),
where the supreme court stated: “if one party introduces part
of an utterance or writing the opposing party may introduce
the remainder or so much thereof as is required to place that
part originally offered in proper context so that a correct and
true meaning is conveyed to the jury.” Lawson, 64 Ill. 2d at
556. Note, however, that IRE 106, like its federal counterpart,
does not limit the rule of completeness to the same writing or
recorded statement, which was the case previously in Illinois,
as demonstrated by the pre-codication decisions in such cases
as People v. Patterson, 154 Ill. 2d 414, 453-54 (1993) and the
language quoted above from Lawson. See also People v. DePoy,
40 Ill. 2d 433, 438-39 (1968). See, too, section (1) under the
“Modernization” discussion in the Committee’s general com-
mentary on page 2 of this guide.
deciSionS applying the rule
In People v. Craigen, 2013 IL App (2d) 111300, the appellate
court provided an extensive analysis of IRE 106 in rejecting the
defendant’s contention that an audio recording of an excul-
patory statement the defendant gave to police nearly three
months before he gave an inculpatory video statement, which
was admitted into evidence, also should have been admitted
into evidence as a related recorded statement. In holding that
the trial court did not abuse its discretion in refusing to admit
the prior recording, the appellate court reasoned:
“[U]nder the common-law completeness doctrine,
the remainder of a writing, recording, or oral state-
ment is admissible only if required to prevent the
jury from being misled, to place the admitted por-
tion in context so that a true meaning is conveyed,
or to shed light on the meaning of the admitted
portion, and the same holds true for admissibility
of a writing or recorded statement under Illinois
Rule of Evidence 106. Simply because a writing or
recorded statement is related to an admitted writ-
COMMENTARY
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
46RULE 106 ARTICLE I. GENERAL PROVISIONS
ing or recorded statement, or pertains to the same
subject matter, does not mean that it satises the
requirements for admissibility under Rule 106.”
Craigen, at ¶ 46.
The appellate court added: “The former interview did not
shed light on the latter interview or place it in context—it
merely contradicted it,” and therefore it was not admissible
under IRE 106. Id. The court emphasized that “[t]he rule is not
a means to admit evidence that aids a defendant in proving his
or her theory of the case,” pointing out that “[w]here, as here, a
defendant has not shown that the admitted writing or recorded
statement, standing alone, is misleading, Rule 106 does not
provide an avenue for admitting another writing or recorded
statement.” Id., at ¶ 48.
For a recent decision applying the above principles, in the
context of a postconviction proceeding, where the defendant
alleged ineffective assistance of counsel for not invoking the
completeness doctrine and where the circuit court dismissed
the defendant’s petitions as frivolous and patently without
merit, see People v. Viramontes, 2021 IL App (1st) 190665,
¶¶ 49-60.
Examples of other appellate court cases involving the com-
pleteness doctrine are worthy of note—if only to demonstrate
that determinations regarding application of the rule can be
controversial.
In People v. Ruback, 2013 IL App (3d) 110256, one of the
issues addressed by the appellate court was whether a video-
taped exculpatory statement made by the defendant’s wife to
police, just before her inculpatory statement, should have been
admitted with the inculpatory statement that was admitted as
a prior inconsistent statement. The authoring appellate judge
said the statement was properly barred under common-law
principles that bar the admission of prior consistent statements;
a specially concurring judge said the issue had been waived
and therefore should not have been addressed; and the other
specially concurring judge said that the exculpatory statement
should have been admitted under the completeness doctrine,
but that the error in not admitting it was harmless.
In People v. Alvarado, 2013 IL App (3d) 120467, the appel-
late court held that, where the defendant knew and agreed to
the condition for admitting the favorable portion of a video
recording, the trial court’s ruling admitting the part of the
video unfavorable to the defendant (which the trial court had
previously suppressed) was correct under the completeness
doctrine. But it held that it would have been preferable to have
admitted the unfavorable portion of the video recording during
the State’s rebuttal case. And a specially concurring judge
concluded that, if the admission of the unfavorable portion of
the video was error, it was invited error because the defendant
chose to admit the favorable part of the tape, knowing that the
trial court’s condition for admitting that portion of the tape was
the admission of the unfavorable portion.
COMMENTARY CONTINUED
47ARTICLE II. JUDICIAL NOTICE RULE 201
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE II. JUDICIAL NOTICE
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. is rule governs judicial notice of an
adjudicative fact only, not a legislative fact.
(b) Kinds of Facts at May Be Judicially
Noticed. e court may judicially notice a fact that is
not subject to reasonable dispute because it:
(1) is generally known within the trial court’s
territorial jurisdiction; or
(2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned.
(c) Taking Notice. e court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests
it and the court is supplied with the necessary infor-
mation.
(d) Timing. e court may take judicial notice at
any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a
party is entitled to be heard on the propriety of taking
judicial notice and the nature of the fact to be noticed.
If the court takes judicial notice before notifying a
party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court
must instruct the jury to accept the noticed fact as
conclusive. In a criminal case, the court must instruct
the jury that it may or may not accept the noticed fact
as conclusive.
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of Rule. is rule governs only judicial
notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be
one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy
cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial
notice, whether requested or not.
(d) When Mandatory. A court shall take judicial
notice if requested by a party and supplied with the
necessary information.
(e) Opportunity to be Heard. A party is entitled
upon timely request to an opportunity to be heard as to
the propriety of taking judicial notice and the tenor of
the matter noticed. In the absence of prior notication,
the request may be made after judicial notice has been
taken.
(f) Time of Taking Notice. Judicial notice may be
taken at any stage of the proceeding.
(g) Informing the Jury. In a civil action or pro-
ceeding, the court shall inform the jury to accept as
conclusive any fact judicially noticed. In a criminal
case, the court shall inform the jury that it may, but is
not required to, accept as conclusive any fact judicially
noticed.
Author’s Commentary on Ill. R. Evid. 201(a)
IRE 201(a) is identical to the federal rule before the latter’s
amendment for stylistic purposes effective December 1, 2011.
The rule addresses only adjudicative facts, i.e., the facts of a
particular case. It dispenses with the need to prove facts that are
outside the area of reasonable controversy. It does not address
legislative facts. For statutes that address judicial notice of leg-
islative facts, including ordinances, statutes, the common law,
and court orders, see generally 735 ILCS 5/8-1001-1009; for
48RULE 201 ARTICLE II. JUDICIAL NOTICE
statutory procedures for admitting statutes and court decisions,
see 735 ILCS 5/8-1101-1106; and for statutory procedures for
admitting court, municipal, corporate, and land ofce records,
and patents for land, state patents, and state land sales, see 735
ILCS 5/8-1201-1211.
See, specically, section 8-1003 of the Code of Civil
Procedure (735 ILCS 5/8-1003), which addresses both legisla-
tive facts and common law: “Every court of this state shall take
judicial notice of the common law and statutes of every state,
territory and other jurisdiction of the United States.”
Author’s Commentary on Ill. R. Evid. 201(b)
IRE 201(b) is identical to the federal rule before the latter’s
amendment for stylistic purposes effective December 1, 2011.
See Murdy v. Edgar, 103 Ill. 2d 384 (1984) (providing the same
standards contained in the rule).
In People v. Tassone, 41 Ill. 2d 7 (1968), the State failed
to prove the value of a stolen semi-trailer truck. In afrming
the defendant’s conviction for felony theft, the supreme court
reasoned:
“We see no valid reason why notice may not be
taken in a case such as this that the property has a
value of over $150. Courts do not operate in a vac-
uum; they are presumed to be no more ignorant
than the public generally, and will take judicial
notice of that which everyone knows to be true.
[Citation.] To say that it is not common knowledge
that a large tractor and trailer are worth more than
$150 is to close our eyes to reality. We do not take
judicial notice of the exact value of the property
but we do take notice that it is worth more than
$150.” Tassone, 41 Ill. 2d at 12.
In the pre-codication decision in People v. Mehlberg,
249 Ill. App. 3d 499, 531-32 (1993), relying upon and citing
supreme court precedent, the appellate court provided this
succinct summary of evidence subject to judicial notice:
“Courts may take judicial notice of matters which
are commonly known or of facts which, while
not generally known, are readily veriable from
sources of indisputable accuracy. (People v. Davis
(1976), 65 Ill. 2d 157, 161.) A court will not take
judicial notice of critical evidentiary material
not presented in the court below, however, and
this is especially true of evidence which may
be signicant in the proper determination of the
issues between the parties. Vulcan Materials Co.
v. Bee Construction (1983), 96 Ill. 2d 159, 166,
citing Ashland Savings & Loan Association v. Aetna
Insurance Co. (1974), 18 Ill. App. 3d 70, 78.”
In Mehlberg, the appellate court declined to take judicial
notice of secondary sources that had not been submitted to
the trial court but were submitted to the appellate court for the
purpose of impeaching the State’s expert witnesses concerning
DNA evidence. The court accordingly struck the portions of
the appendix to the defendant’s brief that contained secondary
materials from various publications, as well as the portions of
the defendant’s brief that referred to them.
People v. Heard, 2021 IL App (1st) 192062, was a bench
trial in which the defendant was charged with possession of
less than 15 grams of a substance containing methylenedi-
oxymethamphetamine (ecstasy or MDMA). A police ofcer,
who made a trafc stop of the defendant who was driving the
car, asked the defendant what was in the knotted plastic bag
that was protruding from the center console. The defendant
responded, “dust.” Pointing out that there was no evidence that
“dust” meant ecstasy, the appellate court reversed the defen-
dant’s conviction, reasoning:
“The State offered no evidence to support the
judge’s nding that ‘dust *** is a street term for
the drug commonly known as ecstasy.’ The State
contends that the trial judge could rely on his
own knowledge of street names for drugs, but we
nd that the judge is not at liberty to take judi-
cial notice of the meaning of slang expressions.
Therefore, there must be some admitted evidence
of the meaning of the slang expression.” Id. at ¶ 18
(ellipsis is the court’s).
COMMENTARY CONTINUED
49ARTICLE II. JUDICIAL NOTICE RULE 201
in re n.g.: Supreme court diSagreement on application of
judicial notice
In In re N.G., 2018 IL 121939, judicial notice played a
key role in the underlying decision of the four justices in the
supreme court majority, but the use of judicial notice drew
heavy criticism from the three dissenting justices. In that case,
the supreme court reviewed the appellate court reversal of the
judgment of the circuit court terminating a father’s parental
rights to his minor son, on the grounds that he was an unt par-
ent based on a statute in the Adoption Act (750 ILCS 50/1(D)),
which presumed him to be “depraved” because he had been
convicted of at least three felonies. One of the father’s three
convictions was for an unlawful use of a weapon charge under
a statute, a part of which the supreme court had determined to
be facially unconstitutional in its decision in People v. Aguillar,
2013 IL 112116. Because the record on appeal did not contain
information regarding the specic provision of the statute under
which the father had been convicted, the appellate court, sua
sponte, examined and took judicial notice of court records
from the father’s prior prosecution in the circuit court. Citing a
number of appellate court decisions, the supreme court major-
ity found that “[d]oing so was well within the appellate court’s
authority,” and it found that the records conrmed that the
father’s conviction was based on sections of the statute found
to be unconstitutional in Aguillar. N.G., at ¶ 32.
In addressing that portion of the majority’s decision, the dis-
sent was critical of the appellate court’s taking judicial notice of
facts from the earlier criminal proceeding “to establish eviden-
tiary proof regarding the nature of the conviction,” and using
those facts “to not only ll evidentiary gaps in the record but
as a basis to vacate the judgment of conviction in the [earlier]
criminal proceeding.” Id. at ¶ 115. The dissent then contended:
“none of the majority’s cited precedent, nor the Illinois Rules of
Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011)) regarding judicial
notice, countenances the use of judicially noticed facts from
outside the record on appeal to ll gaps in the evidentiary
record and to sua sponte vacate a judgment of conviction in a
separate criminal proceeding. The majority ignores any proper
limitations on the use of judicially noticed facts.” Id. (Emphasis
in original).
The takeaway from N.G.: Although the supreme court
approved the use of judicial notice in this case, trial lawyers
should ensure that the record in the trial court—which, of
course is the record on appeal—provides the facts and argu-
ments relevant to the appeal (as well as to the trial), so that no
initial recourse to judicial notice on appeal is necessary.
recent deciSionS diSallowing judicial notice
For a case that cites this codied rule and other decisions in
holding that testimony from a separate proceeding not involving
the defendant was not subject to judicial notice, see People v.
Rubalcava, 2013 IL App (2d) 120396. See also In re S.M., 2015
IL App (3d) 140687 (reversing delinquency nding in holding
that the trial court should not have taken judicial notice of the
information in the State’s rebuttal closing argument to establish
the age element (that the juvenile was under 18 years of age)
for the offense of unlawful possession of a concealable rearm,
where the State presented no evidence of juvenile’s age during
the evidentiary stage at trial, and holding that, to establish age
of juvenile beyond a reasonable doubt, judicial notice could
not be taken: of the fact that the proceeding was in juvenile
court, of “the le,” and of the fact that juvenile had previously
made an unsworn statement that he was 16 years of age to the
court during his arraignment).
See also People v. Crawford, 2013 IL App (1st) 100310, ¶ 125
(“expert’s deposition [in another case] was not undisputed, so
judicial notice of the substance of that testimony—but not the
fact that the expert testied—would be inappropriate”); and
People v. Shamhart, 2016 IL App (5th) 130589, ¶ 39 (“The
court could have taken notice that the defendant had led
documents, but it could not have taken judicial notice of the
content of the documents, as that content was disputed.”).
In Shrock v. Ungaretti & Harris Ltd., 2019 IL App (1st)
181698, the appellate court noted that “it would be improper
to judicially notice the allegations in a pleading led in another
lawsuit and take those allegations to be established facts in this
case” (id. at ¶ 66 (emphasis by the court)), but it held that its
reliance on other lings by the plaintiff were indicative of the
plaintiff’s knowledge of alleged injury, which was related to
whether the statute of limitations barred the current litigation.
COMMENTARY CONTINUED
50RULE 201 ARTICLE II. JUDICIAL NOTICE
In Ittersagen v. Advocate Health and Hospitals Corp., 2021
IL 126507, the appellate court denied the plaintiff’s motion to
take judicial notice of a tax document to support his allegation
of juror bias. In its review, the supreme court afrmed the
appellate court’s ruling, reasoning:
“Plaintiff forfeited his argument concerning the tax
document by failing to raise it in the trial court,
and he compounded the forfeiture by waiting until
the eleventh hour to present it to the appellate
court. See Village of Lake Villa v. Stokovich, 211
Ill. 2d 106, 121 (2004) (issues not raised in the
trial court are forfeited and may not be raised on
appeal). The forfeiture obviates the need to address
whether the tax document is subject to judicial
notice.” Ittersagen, at ¶ 76.
Seventh circuit judge’S advice on Seeking judicial notice on
appeal
In In the Matter of Steven Robert Lisse, 905 F.3d 495 (7th
Cir. 2018), Judge Frank Easterbrook, in his capacity as motions
judge, explained why he was publishing an explanation for
his denial of a document styled “Request for Judicial Notice,”
“in the hope of forestalling other, similar applications, which
recently have increased in frequency.”
After rst providing the two requirements of FRE 201(b)—
which is substantially identical to IRE 201(b)—Judge Easterbrook
pointed out that the appellant in the case at bar made requests
for judicial notice of four documents. Two of the requests were
for orders entered by a state court in Wisconsin. He concluded
that, as public records, they were appropriate subjects of judi-
cial notice. See Menominee Indian Tribe v. Thompson, 161 F.3d
449, 456 (7th Cir. 1998) and FRE 901(b)(7).
The third document was a power of attorney led in state
court. Citing various rules of evidence, he questioned whether
the document could meet the requirements for proving authen-
ticity and even for relevance. He noted that, even if the docu-
ment had been led in the proceedings at bar, it would not be
subject to judicial notice; and it would not receive privileged
status because it was led in a state court.
The fourth document was a lawyer’s motion led in the same
state court. Pointing out that the document was not subject to
judicial notice because it was not evidence of an adjudicative
fact, he noted that just as an appellate brief in the Seventh
Circuit is not evidence, neither is a lawyer’s motion in state
court. He distinguished the current request from a situation
where a document is offered for judicial notice merely to show
that it had been led.
Finally, Judge Easterbrook explained why he was denying
the request for judicial notice in its entirety, including even the
rst two documents that were indeed subject to judicial notice.
His reasons were pragmatic:
When evidence is “not subject to reasonable dis-
pute,” there’s no need to multiply the paperwork
by ling motions or “Requests.” Just refer to the
evidence in the brief and explain there why it
is relevant and subject to judicial notice. If the
assertion is questionable, the opposing litigant
can protest. “On timely request, a party is entitled
to be heard on the propriety of taking judicial
notice and the nature of the fact to be noticed.”
Rule 201(e) [which is substantively identical to IRE
201(e)]. That “timely request” and the “opportunity
to be heard” both belong in the next brief. So if an
appellant proposes judicial notice, the appellee’s
objection can be presented in its own brief. If it
is an appellee who proposes judicial notice, the
appellant’s reply brief provides the opportunity to
be heard in opposition. There’s no need to engage
in motion practice, require the attention of addi-
tional appellate judges, and defer brieng.
Judge Easterbrook’s opinion certainly should be heeded
when judicial notice is sought before the Seventh Circuit. And
its relevance to appeals in Illinois courts of review should be
considered.
Sampling of illinoiS appellate and Seventh circuit court deciSionS
on judicial notice baSed on internet SearcheS
In a decision that predates the Illinois Rules of Evidence, the
appellate court cited the two requirements now incorporated
in IRE 201(b)(1) and (2) in holding that it could take judicial
notice of a Google Map submitted by the State for the rst time
on appeal, in order to show that the location where a drug
COMMENTARY CONTINUED
51ARTICLE II. JUDICIAL NOTICE RULE 201
COMMENTARY CONTINUED
transaction occurred was within 1,000 feet of a public park.
See People v. Clark, 406 Ill. App 3d 622 (2d Dist. 2010) (“case
law supports the proposition that information acquired from
mainstream Internet sites such as Map Quest and Google Maps
is reliable enough to support a request for judicial notice”).
Also, in People v. Stiff, 391 Ill. App. 3d 494 (5th Dist. 2009),
the appellate court consulted Google Maps to determine the
distance between the place where the victim was set on re and
the place to which he ran, as an aid to determine the admissi-
bility of statements made by him under the excited utterance
exception to the hearsay rule. And in Hoskin v. Union Pacic
R.R. Co., 365 Ill. App. 3d 1021 (5th Dist. 2006), the appellate
court sua sponte consulted MapQuest to determine distances
between towns for the purpose of determining the propriety of
the trial court’s ruling on a forum non conveniens motion.
In Shaw v. Haas, 2019 IL App (5th) 180588, citing its
decision in Hoskin, the appellate court used Google Maps, in
a case involving the propriety of a circuit court’s ruling on a
motion based on forum non conveniens, to take judicial notice
for determining the distances for a defendant traveling either to
the Monroe County courthouse or to the St. Clair County court-
house. Id. at ¶ 24. The appellate court also took judicial notice
from Google Maps to determine the four-minute traveling time
difference from the defendant’s corporate headquarters to the
two courthouses. Id. at ¶ 25. Parenthetically, consistent with
the supreme court’s decision in Dawdy v. Union Pacic R.R.
Co., 207 Ill. 2d 166, the appellate court held that the annual
report of the Administrative Ofce of the Illinois Courts is a
proper reference in assessing court congestion. Id. at ¶ 29.
Citing Clark and Stiff, in Wisnasky v. CSX Transportation,
Inc. 2020 IL App (5th) 170418, a case involving tragic deaths
from the collision of a car and a train, the appellate court took
judicial notice of an aerial photograph from Google Maps
and included the photograph in its opinion, “[f]or the limited
purpose of assisting the reader in understanding the layout of
[the relevant street crossing the railroad tracks].” Id. at ¶ 6,
In United States v. Julius, ___ _F.4th ___, No. 20-2451 (7th
Cir. September 24, 2021) the Seventh Circuit noted several
instances where courts have taken judicial notice of distance
estimates from Google Maps, but reasoned that travel-time
estimates are a different matter for bicycle travel time distance.
That is so because “[a]ny number of factors could impact a
cyclist’s travel time, including the cyclist’s level of intoxication
(recall that [defendant] was drunk), the type and quality of the
bicycle, and the cyclist’s prociency at riding a bike.” Julius,
slip op. at 8-9.
For those interested in pursuing the role of an appellate
court’s Internet research for facts that are not in the record, the
Seventh Circuit Court of Appeals decision in Rowe v. Gibson,
798 F.3d 622, (7th Cir. 2015), is must reading. In the majority
decision, Judge Richard Posner presented numerous facts
derived from Internet searches in support of the reversal of sum-
mary judgment entered against a pro se plaintiff. Judge Posner’s
justication for such searches makes for interesting reading, as
does the short concurring opinion which concludes that resort
to the Internet was unnecessary, and the partially concurring
and dissenting opinion, which asserts that the court’s opinion in
reversing the grant of summary judgment was premised on its
nding of a genuine issue of material fact based on its Internet
research.
Note that, in People v. Gocmen, 2018 IL 133388, the
supreme court separately provided two Internet sites to bolster
conclusions it drew from the record:
• To demonstrate as unfounded the appellate court’s
inference from testimony that, because the “NARK
swipe” used by a police ofcer was “used to test
for opiates when cocaine is not an opiate,” and
it therefore was “unclear whether [the police
ofcer] even administered the correct type of test,
and if so, whether he administered it correctly,”
the supreme court relied on a website that stated
“that NARK tests are available for a variety of sub-
stances, including opiates and cocaine.” Gocmen,
at ¶¶ 44-45.
• To demonstrate that, if the trial and appellate
courts based their conclusions on what they
believed was common knowledge that track marks
on the defendant’s arm could have been caused
by regular injections of insulin for diabetes as
claimed by the defendant, they were mistaken—a
52RULE 201 ARTICLE II. JUDICIAL NOTICE
fact acknowledged by defense counsel at oral
argument and augmented by a website, provided
in a footnote, that “[i]nsulin is injected subcutane-
ously into the fatty layer between skin and muscle,
not intravenously.” Id. at ¶¶ 49-51 and note 2.
Note too that in Guerra v. Advanced Pain Centers S.C., 2018
IL App (1st) 171857, an appeal in a medical malpractice action,
the dissenting justice referred to numerous Internet sites related
to drug addiction and the effect of numerous opiate drugs on a
patient who died from an acetaminophen overdose.
For additional interesting reading concerning Internet
research for facts that are not in the record, see Formal Opinion
478 of the Standing Committee on Ethics and Professional
Responsibility of the American Bar Association, issued on
December 8, 2017. In concluding that judges should not per-
form research designed to obtain adjudicative facts that are not
subject to judicial notice, the Opinion notes that Rule 2.9(C) of
the Model Code of Judicial Conduct states:
“A judge shall not investigate facts in a matter
independently, and shall consider only the evi-
dence presented and any facts that may properly
be judicially noticed.”
The Opinion further notes that “Comment [6] to Rule 2.9
claries that the ‘prohibition against a judge investigating the
facts in a matter extends to information available in all medi-
ums, including electronic.’”
Author’s Commentary on Ill. Rs. Evid. 201(c) and 201(d)
IRE 201(c) and 201(d) are identical to their counterpart fed-
eral rules before their amendment for stylistic purposes effective
December 1, 2011. Note, however, that the December 1, 2011
amendment consolidated the two federal rules into a single
rule designated as FRE 201(c)(1) and (2).
Regarding IRE 201(c), see People v. Barham, 337 Ill. App. 3d
1121 (2003) (court may take sua sponte judicial notice, but is
not required to do so if not requested, and should satisfy certain
requirements when doing so).
Author’s Commentary on Ill. R. Evid. 201(e)
IRE 201(e) is identical to the federal rule before the latter’s
amendment for stylistic purposes effective December 1, 2011.
See People v. Barham, 337 Ill. App. 3d 1121 (2003) (discussing
the principles generally and emphasizing that a court, like
a jury, should not rely upon facts within its knowledge that
have not been admitted). See also In re S.M., 2015 IL App (3d)
140687 (citing Barham, in holding that, after the evidence was
closed and during the State’s rebuttal closing argument, it was
improper for the trial court to take judicial notice of the juve-
nile’s unsworn statement, made during his previous arraign-
ment proceeding, that he was 16 years of age, to establish an
element of the offense of unlawful possession of a concealable
rearm by a person under the age of 18 years).
The second sentence of the rule entitles a party to be heard
if the court takes judicial notice without notifying the parties.
Author’s Commentary on Ill. R. Evid. 201(f)
IRE 201(f) is identical to FRE 201(f) before the latter’s
amendment for stylistic purposes effective December 1, 2011.
Note, however, that the December 1, 2011 amendment altered
the previous federal subdivision designation by moving what
had been FRE 201(f) to its current location as FRE 201(d).
Author’s Commentary on Ill. R. Evid. 201(g)
Except for the substitution of “Informing” in the title of the
Illinois rule for the word “Instructing” in the title of the federal
rule, and the substitution in the Illinois rule of “inform” for
the word “instruct” in both sentences of the federal rule, in
order to permit more informal direction from the court to the
jury, IRE 201(g) is identical to what was FRE 201(g) before its
amendment for stylistic purposes effective December 1, 2011.
Note, however, that the December 1, 2011 amendment re-des-
ignated the federal rule as FRE 201(f).
COMMENTARY CONTINUED
53ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS ... RULE 301
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Author’s Commentary on Ill. R. Evid. 301
IRE 301 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for the minor adjustment due to the difference
between federal and Illinois procedures.
mandatory preSumptionS prohibited in criminal caSeS
Note that the rule applies only to civil cases. Mandatory pre-
sumptions in criminal cases are per se unconstitutional. That is
so because mandatory presumptions deprive defendants of the
constitutional guarantees of the presumption of innocence and
the prosecution’s burden of establishing guilt on every element
by proof beyond a reasonable doubt. See, for example, People
v. Jordan, 218 Ill. 2d 255 (2006) (holding that a mandatory
presumption, even a rebuttable one, is unconstitutional). See
also Sandstrom v. Montana, 442 U.S. 510 (1979) (holding
that mandatory conclusive presumptions are unconstitutional
because they conict with the presumption of innocence,
and mandatory rebuttable presumptions are unconstitutional
because they relieve the prosecution of its burden of proving
every element of the offense beyond a reasonable doubt);
People v. Watts, 181 Ill. 2d 133 (1998) (holding that mandatory
rebuttable presumptions that shift the burden of production to a
criminal defendant are unconstitutional because, in effect, they
require a trial court “to direct a verdict against the defendant on
the element which is proved by the use of the presumption”).
Distinguishing Mandatory and Permissive Presumptions
The difference between mandatory and permissive pre-
sumptions in the context of criminal cases is illustrated by the
supreme court decisions that follow.
• People v. Woodrum, 223 Ill. 2d 286 (2006) (noting
that a “permissive presumption allows, but does not
require, the trier of fact to infer the existence of the
ultimate fact upon proof of the predicate fact, without
placing a burden on the defendant,” and holding that
the child abduction statute that provided “the luring or
attempted luring of a child under the age of 16 into a
motor vehicle, building, housetrailer, or dwelling place
without the consent of the parent or lawful custodian of
the child shall be prima facie evidence of other than a
lawful purpose” constituted a mandatory presumption,
because “prima facie evidence is evidence that will
establish a fact or sustain a judgment unless contradictory
evidence is produced” (emphasis in original; internal
quotation marks omitted).
Rule 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules
provide otherwise, the party against whom a presump-
tion is directed has the burden of producing evidence to
rebut the presumption. But this rule does not shift the
burden of persuasion, which remains on the party who
had it originally.
Rule 301. Presumptions in General in Civil Actions
and Proceedings
In all civil actions and proceedings not otherwise
provided for by rule, statute or court decision, a
presumption imposes on the party against whom it is
directed the burden of going forward with evidence to
rebut or meet the presumption, but does not shift to
such party the burden of proof in the sense of the risk
of nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast.
54RULE 301 ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS ...
• People v. Hester, 131 Ill. 2d 91 (1989) (dening a
permissive presumption as “one where the fact nder
is free to accept or reject the suggested presumption.
It places no burden on the defendant and affects the
application of the ‘beyond a reasonable doubt’ standard
only if, under the facts of the case, there is no rational
way the trier could make the connection permitted by
the inference. The validity of a permissive presumption
is subject to a less stringent test: there must be a ratio-
nal connection between the facts proved and the facts
presumed, and the ultimate fact must be more likely
than not to ow from the basic fact. Nevertheless, the
inference must be supported by corroborating evidence
of guilt; if there is no corroborating evidence, the leap
from the proved fact to the presumed element must still
be proved beyond a reasonable doubt.” Hester, 131 Ill.
2d at 99-100 (citations and internal quotation marks
omitted).
• People v. Housby, 84 Ill. 2d 415 (1981) (holding a
“permissive inference may always be rejected by the fact
nder if it chooses to ignore it, and where there is corrob-
orating evidence, the permissive inference is not the sole
and sufcient basis for a nding of guilt. It is unnecessary
therefore to establish that the inference follows beyond
a reasonable doubt from the proved fact, for while it is
necessary to prove the elements of an offense beyond a
reasonable doubt, that may be done by resort to all the
evidence, including the permissive inference. But, where
the permissive inference stands unsupported by corrobo-
rating circumstances, the lead from the proved fact to the
presumed element must satisfy the higher standard proof
beyond a reasonable doubt for there is nothing else on
which to rest the fact nder’s verdict of guilt.”).
Sampling of Relevant Decisions
For cases relevant to the codied rule, see Franciscan Sisters
Health Care Corporation v. Dean, 95 Ill. 2d 452 (1983) (in a
will contest case, where there was a rebuttable presumption of
undue inuence on the testatrix by the lawyer who drew up the
will and was a beneciary under it, holding that the presump-
tion of undue inuence was overcome by evidence provided
by defendant and describing Thayer’s “bursting bubble” theory
and citing cases applying it); McElroy v. Force, 38 Ill. 2d 528
(1967) (in personal injury case, rebuttable presumption that
deceased owner of car was its driver was not rebutted by any
evidence and thus properly sustained the judgment); Collins v.
Noltensmeier, 2018 IL App (4th) 170443 (holding that, based
on defendant’s unauthorized exercise of a power of attorney
which made no specic allowance for her changing the ben-
eciary on the IRA of the deceased granter of the power of
attorney, the rebuttable presumption of fraudulent self-dealing
was created, and holding further that, in the absence of clear
and convincing evidence to rebut the presumption, the grant
of summary judgment in favor of the plaintiffs was afrmed).
COMMENTARY CONTINUED
55ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS ... RULE 302
Rule 302. Applying State Law to Presumptions in
Civil Cases
In a civil case, state law governs the eect of a pre-
sumption regarding a claim or defense for which state
law supplies the rule of decision.
[FRE .]
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 302
The Erie doctrine (see Erie Railroad Co. v. Thompkins, 304
U.S. 64 (1938)), which provides that, in diversity actions, fed-
eral courts must apply not only the statutes of the state where
the transaction occurred but also that state’s common law, does
not apply to actions pending in Illinois state courts. Thus, the
principle contained in FRE 302 is not required in Illinois. If a
choice of law issue arises on an evidentiary issue in Illinois,
the issue is to be decided pursuant to principles contained in
Restatement (Second) of Conicts of Law. See Esser v. McIntrye,
169 Ill. 2d 292 (1996) (recognizing that Illinois follows the
Restatement (Second)’s most signicant relationship test).
For an Illinois Supreme Court example of a decision apply-
ing the Restatement, see Barbara’s Sales, Inc. v. Intel Corp. 227
Ill. 2d 45 (2007) (in following the Restatement, applying “the
broad principle that the rights and liabilities as to a particular
issue are to be governed by the jurisdiction which retains the
‘most signicant relationship’ to the occurrence and the par-
ties”). For an example of an Illinois Appellate Court analysis of
a choice-of-law issue, see Denton v. Universal Am-Can, Ltd.,
2015 IL App (1st) 132905 (holding that Indiana law should
apply because Indiana had more signicant contacts with the
vehicular accident that occurred on an interstate highway in
that state).
For an example of a Seventh Circuit Court of Appeals
choice-of-law issue, see Rainey v. Taylor, 941 F.3d 243 (7th
Cir. 2019) (noting that the court has not always been clear
about whether state or federal law controls in determining the
applicable standard for reviewing a jury’s compensatory award
in cases involving state-law claims, and holding that, because
the U.S. Supreme Court has held that state-law standards for
evaluating a jury’s compensatory award are substantive and
not procedural, “when a federal jury awards compensatory
damages in a state-law claim, state law determines whether
that award is excessive”). Rainey, 941 F.3d at 253.
57ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 401
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE IV. RELEVANCY AND ITS LIMITS
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Author’s Commentary on Ill. R. Evid. 401
IRE 401 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. The rule provides the test for determining whether
evidence is relevant. Plainly stated, evidence is relevant if it
has any tendency to make more or less probable a fact that
is of consequence in determining the action. Thus, “[w]hether
evidence is relevant is a low threshold.” See United States v.
Hamzeh, 986 F.3d 1048,1052 (7th Cir. 2021), citing United
States v. Driggers, 913 F.3d 655, 658 (7th Cir. 2019).
pre-codification Supreme court deciSionS on relevant evidence
In adopting FRE 401, well before the codication of Illinois
evidence rules, in People v. Monroe, 66 Ill. 2d 317 (1977),
the supreme court discussed and applied the federal rule’s
denition of relevant evidence. In explaining “relevancy,” the
Monroe court provided this quote from the notes of the federal
Advisory Committee:
“Problems of relevancy call for an answer to the
question whether an item of evidence, when tested
by the processes of legal reasoning, possesses
sufcient probative value to justify receiving it in
evidence. * * *
“Relevancy is not an inherent characteristic of
any item of evidence but exists only as a rela-
tion between an item of evidence and a matter
properly provable in the case. Does the item of
evidence tend to prove the matter sought to be
proved? Whether the relationship exists depends
upon principles evolved by experience or science,
applied logically to the situation at hand.” People
v. Monroe, 66 Ill. 2d at 322.
In Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), the
supreme court said this about relevant evidence:
“Relevant evidence is evidence that has ‘any
tendency to make the existence of any fact that
is of consequence to the determination of the
action more probable or less probable than it
would be without the evidence.’ Fed. R. Evid. 401;
see People v. Monroe, 66 Ill. 2d 317, 322 (1977)
(adopting Rule 401); see also Marut v. Costello, 34
Ill. 2d 125, 128, (1965) (holding that evidence is
relevant if it ‘tends to prove a fact in controversy or
renders a matter in issue more or less probable’).
Relevancy is ‘tested in the light of logic, experience
and accepted assumption as to human behavior.’
Marut, 34 Ill. 2d at 128. However, `[r]elevancy
is not an inherent characteristic of any item of
evidence but exists only as a relation between an
item of evidence and a matter properly provable in
the case.’ Monroe, 66 Ill. 2d at 322, quoting Fed.
R. Evid. 401, Advisory Committee’s Note.”
The appellate court decision in People v. Tatum, 2019 IL
App (1st) 162403, ¶¶ 108-124, discusses relevance in relation
Rule 401. Denition of “Relevant Evidence”
“Relevant evidence” means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the
action.
58RULE 401 ARTICLE IV. RELEVANCY AND ITS LIMITS
to the admission of autopsy photos in a murder prosecution.
Citing IRE 401 and People v. Bounds, 171 Ill. 2d 1, 46 (1995),
and reasoning that the word “consequence” in the phrase “any
fact that is of consequence” can be equated with the word
“issue,” the court held that there is no basis for contending
that a disputed issue is necessary to satisfy the requirements of
relevancy. Because the State is required to prove every element
of a charged offense, it is permitted to “prove any fact it needs
to prove, such as the cause or manner of death, even if that
fact is not disputed.” Tatum, at ¶ 113. Thus, as the supreme
court established in Bounds, autopsy photos were properly
sent to the jury room even though the cause of death was
not disputed at trial. Noting, however, that evidence offered
to prove undisputed facts is more likely to be excluded under
Rule 403’s balancing test, the appellate court applied that test
in holding that the photos were properly provided to the jury
because of arguments made by defense counsel in closing
arguments, which put the victim’s injuries at issue and resulted
in the court’s conclusion that “the probative value of the photos
was no longer substantially outweighed by the risk of unfair
prejudice.” Id. at ¶ 121.
PeaCh v. mCgovern: rejecting prior appellate court deciSionS in
permitting admiSSibility of poStaccident vehicular photographS
In Peach v. McGovern, 2019 IL 123156, a jury trial involving
a rear-end vehicular accident, the trial court directed a verdict
against defendant on the issue of negligence at the close of the
evidence, but reserved the questions of causation and damages
for the jury. Testifying as an adverse witness at trial, defendant
said she saw plaintiff stopped at a stop sign and that she fully
stopped behind his pickup truck. She testied that she “spaced
out” and let her “foot off the brake just a little bit, [and] tapped
into his truck,” without pressing the gas pedal once she had
stopped. Peach, at ¶ 5. Plaintiff testied that his back bumper
was dented; defendant testied that her license plate was bent.
The front bumper on defendant’s car was cracked, but it was
not determined that the accident caused the crack. Id. at ¶ 6.
Photos of both vehicles were taken after the accident, and both
parties testied that the photos were accurate. Over plaintiff’s
objections, all the photos were admitted into evidence.
Plaintiff testied that since the accident he has experienced
chronic neck pain from his head hitting the back window of
his truck. He sought treatment a few days after the accident
from his family physician, and then from a physician who was
a pain management specialist. This physician opined that “the
accident caused whiplash and may have caused an annular
tear and loss of integrity of disc space.” Id. at ¶ 13. He testied
that even a low-speed collision could cause the injuries. Over
plaintiff’s objections, in response to the question whether his
ndings might not have been caused by the accident, the
physician responded, “Yes, that’s true. It might not have been
caused by the accident.” Id. at ¶ 14. When asked if some other
event could have caused the ndings, the physician answered
that “a lot of things could have happened” but he did not know
of anything. Id.
The jury returned a verdict for defendant, awarding plaintiff
zero damages. The trial court denied plaintiff’s posttrial motion
for a new trial on the issue of damages. On appeal, nding
that the trial court improperly allowed the admission of the
postaccident photographs without offering expert testimony
and that “the jury’s ndings are unreasonable and not based on
the evidence presented at trial,” the appellate court reversed
the judgment and remanded for a new trial on damages. Id.
at ¶ 19. On further review, the supreme court reversed the
appellate court’s judgment and afrmed the judgment of the
circuit court.
The supreme court rst considered the propriety of the
admission of the postaccident vehicular photographs. After
quoting IRE 401, the court noted that “[i]n general, photo-
graphic evidence is admissible if it has a reasonable tendency
to prove or disprove a material fact at issue in the case but may
be excluded when irrelevant or immaterial or if its prejudicial
nature outweighs its probative value.” Id. at ¶ 27. Citing appel-
late court decisions where photographic evidence had been
admitted, the court pointed out that in this case the appellate
court had relied on Baraniak v. Kurby, 371 Ill. App. 3d 310
(2007) and DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003),
both of which had held that, “absent expert testimony connect-
ing the vehicle damage depicted in postaccident photographs
COMMENTARY CONTINUED
59ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 401
COMMENTARY CONTINUED
to the plaintiff’s injuries, such photographs are not relevant and,
therefore, not admissible.” Peach, 2019 IL 123156 at ¶ 28.
The court pointed out that both appellate court decisions
had cited Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000) in
support of their holdings. In rejecting the application of Voykin
in circumstances related to the admission of photographs,
the supreme court noted that Voykin simply had rejected the
same-part-of-the-body rule, which had erroneously allowed
evidence of a prior injury without a showing that it was causally
connected to the present injury, provided both injuries affected
the same part of the body. (For more on Voykin, see the heading
Expert Testimony Needed to Show Causal Connection Between
Injury at Issue and Preexisting Injury or Conditions under the
Author’s Commentary on Ill. R. Evid. 702.) The court reasoned
that the holding in Voykin, which was predicated on the admis-
sibility of the plaintiff’s prior injury, “is factually distinguishable
from Baraniak and DiCosola, which did not involve prior inju-
ries.” Peach, 2019 IL 123156 at ¶ 31. Because, the court held,
those decisions extended Voykin beyond its reasonable limits,
they were overruled. Id.
Citing IRE 401 and numerous prior reviewing court deci-
sions, the supreme court summarized its holding regarding the
admission of the postaccident photographs as follows:
“Postaccident photographs, just like testimony of
witnesses describing an accident, are relevant to
the issues of proximate cause and injury. Further,
neither the photos nor the witness testimony need
necessarily prove or disprove a particular medical
condition in order to be admissible. Complete
certainty is not required for admissibility. An item
of evidence being but a single link in a chain of
proof, need not prove conclusively the proposition
for which it is offered. It is enough if the item could
reasonably show that a fact is slightly more prob-
able than it would appear without the evidence.
Additionally, arguments about inferences from a
party’s testimony concerning the nature of impact
are equally and appropriately made from the
photographs.
“If a jury is allowed to consider relevant testimony
about vehicle speed and impact forces, a jury
should be permitted to consider photographs that
depict the damage, or lack thereof, done to the
vehicles. These subjects are traditionally things
jurors can understand, and experts have not been
needed to supplement witness descriptions of
events. Illinois courts have long recognized the
jury’s proper role in evaluating vehicle accident
cases and the credibility of witnesses based on
facts testied to and demonstrated by photo-
graphs.” Id. at ¶ 38-39 (all citations and internal
quotations marks omitted).
lorenz v. PleDge: confronting confuSing and miSleading video
For a decision addressing the test for the admissibility of
experimental evidence, see Lorenz v. Pledge, 2014 IL App (3d)
130137. In that case, the appellate court cited IREs 401 and
402 as providing the general guidelines for the admission of
experiments—in this case a video created by the defendants
after an accident. The video was designed primarily to show
the line-of-sight of the driver in the plaintiffs’ car, which was
involved in a collision with a police car pursuing another car,
resulting in a death and injuries that were the subject of the
action for damages. During trial, although the defendants
repeatedly informed the jury that the video was not a re-cre-
ation, a majority of the appellate court panel held that the video
did not satisfy the foundational requirement for establishing
that the essential conditions regarding the line of sight were
substantially similar. With one justice dissenting on rehearing,
the majority held that the video had the potential for confusing
and misleading the jury. The judgment of the circuit court was
therefore reversed and the cause was remanded for a new trial.
60RULE 402 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 402. General Admissibility of Relevant
Evidence
Relevant evidence is admissible unless any of the
following provides otherwise:
· the United States Constitution;
· a federal statute;
· these rules; or
· other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
Rule 402. Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as other-
wise provided by law. Evidence which is not relevant is
not admissible.
Author’s Commentary on Ill. R. Evid. 402
Except for not including FRE 402’s enumeration of the bases
for not allowing admissibility of relevant evidence, IRE 402
is identical to the federal rule before the latter’s amendment
solely for stylistic purposes effective December 1, 2011,
Rather than enumerating bases for not allowing admissibility,
the Illinois rule simply adds the word “law” at the end of the
phrase that now reads “except as otherwise provided by law”
in its rst sentence. See People v. Ward, 2011 IL 108690, ¶ 77
(“evidence, even if relevant, will be excluded if its admission
would violate another rule of evidence, such as the hearsay
rule”). An example of a law that excludes relevant evidence
is the Dead-Man’s Act (735 ILCS 5/8-201), which does so by
rendering incompetent as a witness a party adverse to a party
who sues or defends as the representative of a deceased party
or a person under a legal disability.
Note that, as stated by the United States Supreme Court
in United States v. Abel, 469 U.S. 45, 56 (1984), “there is no
rule of evidence which provides that testimony admissible for
one purpose and inadmissible for another purpose is thereby
rendered inadmissible; quite the contrary is the case.” This
principle was reasserted in People v. Monroe, 66 Ill. 2d 317,
322-23 (1977):
“It is the long-established rule that evidence
admissible for one purpose cannot be excluded
for the reason that it would not be admitted for
another purpose, and that the party against whom
it is admitted may tender instructions appropri-
ately limiting the purpose for which it may be
considered.”
For the codied rule relevant to instructing the jury concern-
ing the limited nature of admitted evidence, see IRE 105.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
61ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 403
Rule 403. Excluding Relevant Evidence for
Prejudice, Confusion, Waste of Time, or Other
Reasons
e court may exclude relevant evidence if its proba-
tive value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.
Rule 403. Exclusion of Relevant Evidence on
Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumu-
lative evidence.
Author’s Commentary on Ill. R. Evid. 403
IRE 403 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See Gill v. Foster, 157 Ill. 2d 304, 313 (1993), where in
a case substantially predating adoption of codied evidence
rules in Illinois and without citing FRE 403, the supreme court
applied principles provided in the rule in reviewing the trial
court’s ruling on admission of evidence. Note that the rule
allows the exclusion of relevant evidence if its probative value
is substantially outweighed by one or more of the dangers it
lists. The rule overlays all other evidentiary rules. The test for
exclusion of relevant evidence provided by the rule is fre-
quently referred to as the “Rule 403 balancing test.”
Probably the most invoked and applied part of the rule is
that which provides for exclusion of relevant evidence based
on the danger of unfair prejudice—the risk that the case will be
decided on an improper basis, frequently because the proffered
evidence would appeal to emotions more than fact or reason.
defining “unfair prejudice”
Regarding “unfair prejudice,” in People v. Pelo, 404 Ill. App.
3d 839, 867 (2010), the appellate court succinctly observed:
“The question is not whether relevant evidence is
more prejudicial than probative; instead, relevant
evidence is inadmissible only if the prejudicial
effect of admitting that evidence substantially
outweighs any probative value. People v. Hanson,
238 Ill. 2d 74, 102 (2010) (‘A court may exercise its
discretion and exclude evidence, even if it is rele-
vant, if the danger of unfair prejudice substantially
outweighs any probative value’); People v. Walker,
211 Ill. 2d 317, 337, (2004); People v. Bryant, 391
Ill. App. 3d 228, 244 (2009). ‘Prejudicial effect’
in this context of admitting that evidence means
that the evidence in question will somehow cast
a negative light upon a defendant for reasons that
have nothing to do with the case on trial. [People
v.] Lynn, 388 Ill. App. 3d [272,] at 278 [(2009)]. In
other words, the jury would be deciding the case
on an improper basis, such as sympathy, hatred,
contempt, or horror. People v. Lewis, 165 Ill. 2d
305, 329 (1995).”
People v. Moore, 2020 IL 124538, offers an example of
unfair prejudice and the consequence of the jury’s learning
of the prejudicial information. In that case, involving the
prosecution for unlawful possession of a weapon by a felon,
defense counsel failed to stipulate to the mere fact that the
defendant had been convicted of a felony, resulting in the jury
being informed that the defendant’s felony conviction was for
murder. Citing Old Chief v. United States, 519 U.S. 172 (1997),
and People v. Walker, 2011 Ill. 2d 317 (2004), both of which
held that where a defendant offers to stipulate to having been
convicted of a felony offense—where only the defendant’s fel-
ony status needs to be proved—it is error to introduce evidence
of the nature of the prior conviction. Reasoning that this was a
closely balanced case, the supreme court held defense counsel
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
62 ARTICLE IV. RELEVANCY AND ITS LIMITS
COMMENTARY CONTINUED
had provided ineffective assistance in not stipulating only to
the defendant’s felony status, which resulted in the evidence
of the defendant’s murder conviction. The court reversed the
conviction and remanded the case to the circuit court.
Parsing a term within the rule, in Smith v. Hunt, 707 F.3d
803 (7th Cir. 2013), the Seventh Circuit Court of Appeals
equated “probative” with “relevant”:
“Whether evidence is ‘probative’ is a similar ques-
tion to whether it is ‘relevant.’ Compare Black’s
Law Dictionary 1323 (9th ed. 2009) (dening
‘probative’ as ‘[t]ending to prove or disprove’),
with id. at 1404 (dening ‘relevant’ as ‘[l]ogically
connected and tending to prove or disprove a
matter in issue.’)” Smith, 707 F.3d at 810.
Citing People v. Eyler, 133 Ill. 2d 173, 218 (1989), in
People v. Edgeston, 157 Ill. 2d 201, 237 (1993), the Illinois
Supreme Court noted that it had “dened prejudice [as later
dened in IRE 403] as an undue tendency to suggest decision
on an improper basis, commonly an emotional one, such as
sympathy, hatred, contempt, or horror, and held that relevant
evidence may be excluded if its prejudicial effect substantially
outweighs its probative value.” The Edgeston court went on
to note that “evidence which is otherwise relevant need not
be excluded merely because it may prejudice the accused or
arouse feelings of horror or indignation in the jury.” Edgeston,
157 Ill. 2d at 237-38.
A note of the federal Advisory Committee (1972) pointed
out:
“In reaching a decision whether to exclude on
grounds of unfair prejudice, consideration should
be given to the probable effectiveness or lack
of effectiveness of a limiting instruction.***The
availability of other means of proof may also be an
appropriate factor.”
tenSion between confrontation clauSe and rule 403
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the United
States Supreme Court held that, in this jury-trial prosecution for
murder, the trial court had improperly applied Delaware’s Rule
403—identical to FRE 403—in barring defense cross-examina-
tion of a prosecution witness about the witness’s possible bias
based on the State’s dismissal of his public drunkenness charge.
Although the Supreme Court held that the denial of cross-ex-
amination on that issue was improper as violative of the sixth
amendment right to confrontation, it held that the error was
harmless beyond a reasonable doubt. Two years later, in Olden
v. Kentucky, 488 U.S. 227 (1988), in a per curiam decision,
the Supreme Court held that, where the man with whom the
alleged victim of a rape was cohabiting saw her exit another
man’s car, the defendant, whose defense was consensual
sex, had the constitutional right under the Sixth Amendment
confrontation clause to question the alleged victim about her
cohabitation with that man to show her motive in making the
claim of rape. The Court further held that the Kentucky appellate
court holding “that petitioner’s right to effective cross-examina-
tion was outweighed by the danger that revealing [the alleged
victim’s] interracial relationship [with the man with whom she
was cohabiting] would prejudice the jury against her” was a
limitation “without reason.” Olden, 488 U.S. at 232.
Van Arsdall and Olden show the tension between Rule 403
balancing and the confrontation rights of an accused. For a
discussion of those decisions and their application in a habeas
corpus decision of the Seventh Circuit, see Rhodes v. Dittmann,
903 F.3d 646 (7th Cir. 2018) (trial court erred in limiting,
under Wisconsin’s version of Rule 403, cross-examination of
defendant’s sister, who testied as a prosecution witness, on the
prosecution’s central theory that defendant killed the deceased
because the deceased had severely beaten the witness the day
before the murder, thus depriving defendant of his efforts to
rebut the prosecution motive theory (based on prior and the
most recent abuse of the witness) by providing a more com-
plete story of the deceased’s violent abuse of the witness).
63ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 404. Character Evidence; Crimes or Other
Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s
character or character trait is not admissible to prove
that on a particular occasion the person acted in
accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a
Criminal Case. e following exceptions apply in a
criminal case:
(A) a defendant may oer evidence of the
defendant’s pertinent trait, and if the evidence is
admitted, the prosecutor may oer evidence to
rebut it;
(B) subject to the limitations in Rule 412, a
defendant may oer evidence of an alleged victim’s
pertinent trait, and if the evidence is admitted,
the prosecutor may:
(i) oer evidence to rebut it; and
(ii) oer evidence of the defendant’s same
trait; and
(C) in a homicide case, the prosecutor may
oer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was
the rst aggressor.
(3) Exceptions for a Witness. Evidence of a
witness’s character may be admitted under Rules
607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other
crime, wrong, or act is not admissible to prove a per-
son’s character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. is evidence may be admis-
sible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal
case, the prosecutor must:
Rule 404. Character Evidence Not Admissible to
Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally. Evidence of a
person’s character or a trait of character is not admis-
sible for the purpose of proving action in conformity
therewith on a particular occasion, except:
(1) Character of Accused. In a criminal case,
evidence of a pertinent trait of character oered by
an accused, or by the prosecution to rebut the same;
(2) Character of Alleged Victim. In a criminal
case, and subject to the limitations imposed by
section 115–7 of the Code of Criminal Procedure
(725 ILCS 5/115–7), evidence of a pertinent trait of
character of the alleged victim of the crime oered
by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness
of the alleged victim oered by the prosecution in a
homicide or battery case to rebut evidence that the
alleged victim was the rst aggressor;
(3) Character of Witness. Evidence of the char-
acter of a witness, as provided in Rules 607, 608,
and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of
other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in
conformity therewith except as provided by sections
115–7.3, 115–7.4, and 115–20 of the Code of Criminal
Procedure (725 ILCS 5/115–7.3, 725 ILCS 5/115–7.4,
and 725 ILCS 5/115–20). Such evidence may also be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
(c) In a criminal case in which the prosecution
intends to oer evidence under subdivision (b), it must
disclose the evidence, including statements of witnesses
or a summary of the substance of any testimony, at a
reasonable time in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
64RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
(A) provide reasonable notice of any such
evidence that the prosecutor intends to oer at
trial, so that the defendant has a fair opportunity
to meet it;
(B) articulate in the notice the permitted
purpose for which the prosecutor intends to oer
the evidence and the reasoning that supports the
purpose; and
(C) do so in writing before trial—or in any
form during trial if the court, for good cause,
excuses lack of pretrial notice.
Author’s Commentary on Ill. R. Evid. 404 Generally
At the outset, note that IRE 404 (like FRE 404) addresses
character evidence in two subdivisions, (a) and (b) — each of
which rst provides the general rule barring evidence designed
to prove propensity, but then provides exceptions to that gen-
eral rule.
IRE 404(a): General Rule Excluding Character Evidence
IRE 404(a) provides the general principle that character
evidence (which, under IRE 405(a), is established by reputation
or opinion) is not admissible to prove “action in conformity
therewith on a particular occasion” (i.e., proof of propensity).
A good illustration of what the rule prohibits in not allowing
character evidence to prove conforming action—and demon-
strating that proof of both negative and positive character
evidence is prohibited—is found in the early Illinois Supreme
Court decision of Holtzman v. Hoy, 118 Ill. 534 (1886). The
appeal in that case was from a judgment of $2,500 for the
“alleged negligence and unskillfulness” of a surgeon in treat-
ing the plaintiff’s leg for a serious and complicated fracture.
The sole issue was whether the trial judge properly refused to
permit one of the surgeon-defendant’s witnesses to answer the
question: “I will ask you what his [the surgeon’s] reputation is
in the community, and among the profession, as being an ordi-
narily skillful and learned physician?” In the archaic prose of
the 19th century (with some highly quotable references about
the often short-lived and good reputation even of quacks), the
supreme court effectively held that the surgeon’s reputation for
being skillful and learned was not relevant.
“careful habitS”: not defenSible aS character evidence
See the Author’s Commentary on Ill. R. Evid. 406 regarding
the special concurrence in Powell v. Dean Foods, 2013 IL App
(1st) 082513-B, as to why “careful habits” is a relic of the past,
should not be admitted in Illinois courts as character evidence,
and is not admissible as habit evidence (and why IPI (Civil)
10.08 is improperly being used to instruct juries), because
“careful habits” does not describe a regular response to a spe-
cic situation and, where such evidence is sought to be intro-
duced as character evidence, IRE 404(a) expressly precludes
admissibility. In short, such evidence should not be admitted as
either habit evidence or character evidence. See also Marc D.
Ginsberg, An Evidentiary Oddity:“Careful Habit” – Does the
COMMENTARY
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Committee Comment to Rule 404
Evidence of character or a trait of character of a person for
the purpose of proving that the person acted in conformity
therewith on a particular occasion is not admissible, except
in a criminal case to the extent provided for under Rule
404(a)(1) (regarding the character of the accused), and under
Rule 404(a)(2) (regarding the character of the alleged victim).
Rule 404(b) renders inadmissible evidence of other crimes,
wrongs, or acts to prove the character of a person in order
to show action in conformity therewith, but allows proof of
other crimes, wrongs, or acts where they are relevant under
statutes related to certain criminal offenses, as well as for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.
65ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
Law of Evidence Embrace This Archaic/Modern Concept? 43
Ohio N. U. L. Rev. 293 (2017), discussing the origins of Illinois’
careful habits and calling for its abolition.
ire 404(a)’S exceptionS to non-admiSSibility
After providing the general principle of non-admissibility of
character evidence, IRE 404(a) then provides three exceptions
to that general principle, the rst two of which apply only in
criminal cases and are rst exercisable only by the defendant
(IRE 404(a)(1) and (2)), while the third applies in both civil
and criminal cases (IRE 404(a)(3)). Each of the exceptions is
explained below in the separate Author’s Commentaries on Ill.
R. Evid. 404(a) (1), (2), and (3).
ire 404(b): general rule of excluSion and exceptionS to the
general rule
IRE 404(b) provides the general principle that evidence of
other crimes, wrongs, or acts (i.e., evidence of specic instances
of conduct) is not admissible “to prove the character of a
person in order to show action in conformity therewith” (i.e.,
propensity), but then it provides Illinois statutory exceptions
that permit evidence to show propensity, and (as in the federal
rule) allows well established common-law exceptions that are
admissible for purposes other than to show propensity—i.e., for
proof of the non-character purposes permitted by the rule (such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident).
Thus, both subdivisions of IRE 404 generally prohibit evi-
dence for propensity purposes, but IRE 404(a) allows character
evidence for such purposes in some specied circumstances,
while IRE 404(b) allows evidence of specic instances of
“crimes, wrongs, or acts” offered for propensity purposes as
allowed by specic statutes, as well as those offered not for
propensity purposes but for the specic non-character purposes
allowed by the rule.
Author’s Commentary on Ill. R. Evid. 404(a)(1)
The rst part of IRE 404(a)(1), which allows evidence of a
pertinent trait of character offered by a defendant in a criminal
case, or by the prosecution to rebut such evidence, is identical
to FRE 404(a)(1) before the latter’s amendment solely for stylistic
purposes effective December 1, 2011. See People v. Lewis, 25
Ill. 2d 442 (1962) (whether or not he testies at trial, defendant
may offer proof as to a pertinent trait of his character); People
v. Holt, 398 Ill. 606 (1948) (where defendant offers evidence of
his character trait, the State may offer evidence regarding the
same character trait on rebuttal).
The second part of pre-amended FRE 404(a)(1) (now
embodied in FRE 404(a)(2)(B)(ii) through amendment effective
December 1, 2011), was not adopted because there is no
Illinois authority that permits prosecution evidence to rebut a
defendant-offered character trait of the victim by admitting evi-
dence concerning the same trait of character of the defendant.
Like FRE 404(a)(2)(B)(i), the Illinois rule allows the prosecution
to rebut the defendant’s evidence of a pertinent trait of charac-
ter of the alleged victim but, in contrast to FRE 404(a)(2)(B)(ii),
does not allow it to do so by offering the same character trait
of the defendant.
deciSionS applying ire 404(a)(1)
IRE 404(a)(1) and cases interpreting it demonstrate both the
similarity of and the difference from the federal rule described
above. See People v. Devine, 199 Ill. App. 3d 1032 (1990)
(holding the State may introduce evidence of a defendant’s
violent nature “only if the defendant rst opens the door by
introducing evidence of good character to show that he is a
quiet and peaceful person”); and People v. Harris, 224 Ill. App.
3d 649 (1992) (holding that defendant’s prior convictions for
crimes of violence may be introduced “only when the defen-
dant clearly puts his character in issue by introducing evidence
of his good character to show that he is a peaceful person”).
See, in contrast, People v. Cervantes, 2014 IL App (3d)
120745, where the trial court allowed the State to admit into
evidence certied copies of the defendant’s three separate
misdemeanor convictions for battery and two domestic battery
offenses, to counterbalance the defendant’s evidence that the
victim in this murder prosecution had a history of making
threats of violence, and therefore may have been the initial
aggressor. Citing Harris, the majority of a panel of the appellate
court held that the evidence of the defendant’s convictions
was improperly admitted because the defendant had not put
COMMENTARY CONTINUED
66RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
his character in issue. The dissent contended that Devine and
Harris were wrongly decided and, citing what is now FRE
404(a)(2)(B)(ii) (which, as pointed out above, has not been
codied in the Illinois rule), contended that “when a defendant
raises self-defense and introduces evidence of the victim’s
violent or aggressive character, the prosecution should be able
to introduce evidence of the defendant’s violent or aggressive
nature.” Again, the view of the dissenting judge as to what
should be allowed is not the rule in Illinois.
Specific inStanceS of defendant’S conduct to rebut defendant-
preSented character evidence prohibited
IRE 404(a)(1) does not permit the State to rebut defen-
dant-presented character evidence of the defendant’s own
character through proof of specic instances of the defendant’s
conduct. That prohibition is consistent with Illinois cases that
specically prohibit such rebuttal evidence, and differs from
FRE 405(a)’s allowance of cross-examination of the character
witness on “relevant specic instances of the person’s conduct.”
In Illinois, the prosecution’s rebuttal of defense-presented
character evidence of the defendant’s own character must be
based on relevant character evidence which, as provided by
IRE 405(a), “may be made by testimony as to reputation, or by
testimony in the form of an opinion.”
See, for example, People v. Hermens, 5 Ill. 2d 277, 287
(1955) (noteworthy for its humorous account of the drunken
exploits of the defendant and two codefendants in stealing nine
pigs, and quoting People v. Page, 365 Ill. 524 (1937), that “nei-
ther on cross-examination nor in rebuttal of proof of good char-
acter can particular acts of misconduct be shown,” in reversing
the defendant’s conviction and holding that “eliciting from the
character witnesses such statements [about the defendant] as ‘I
heard he done some dishonest acts’ and ‘He’s been in trouble
before but I don’t know what for’ were highly prejudicial
and may have inuenced the jury in reaching their verdict of
guilty”). See also People v. West, 246 Ill. App. 3d 1070 (1993)
(reversing defendant’s conviction for murder, in holding that
questions on cross-examination of defendant’s girl friend about
defendant’s committing battery on her on one occasion and
threatening her with a gun on another were improper).
Author’s Commentary on Ill. R. Evid. 404(a)(2)
IRE 404(a)(2) is identical to FRE 404(a)(2) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for two minor differences, the rst of which ((1)
below) is not a substantive difference:
(1) The statute referred to in IRE 404(a)(2)—section
115-7 of the Code of Criminal Procedure of 1963
(which is provided at Appendix E)—is commonly
referred to as the “rape shield law.” It prohibits
evidence of the prior sexual conduct or the repu-
tation of the alleged victim or corroborating (i.e.,
“propensity”) witness, in specied sexual offenses
and in other specied offenses involving sexual
conduct. Though FRE 412, which provides the
federal rape shield law, does not refer to a statute,
that federal rule limits the defendant’s evidence
in similar fashion. (For more information on the
Illinois statute, see the Author’s Commentary on
Ill. R. Evid. 412 infra.) Thus, in a criminal case,
both the Illinois and the federal version of Rule
404(a)(2) allow the defendant to admit character
evidence of an alleged victim—a victim of a
homicide under the federal rule; a victim of a
homicide or a battery under the Illinois rule—but
they prohibit the defendant from presenting evi-
dence that violates the rape shield law as provided
by FRE 412 for federal cases and as provided by
section 115-7 of the Code of Criminal Procedure
for Illinois cases (as well as by IRE 412, through its
reference to section 115-7).
(2) The second difference codies Illinois law by
adding “battery” to the Illinois rule. Thus, that
offense, which is not included in the federal rule,
provides a basis in addition to the offense of
homicide for triggering character-trait evidence
to establish that the alleged victim was the rst
aggressor. Note that Illinois does not require the
defendant to be aware of an alleged victim’s vio-
lent character at the time of the alleged offense.
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67ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
COMMENTARY CONTINUED
See People v. Lynch, 104 Ill. 2d 194 (1984). Note,
too, that IRE 405(b)(2) allows evidence of specic
instances of the alleged victim’s prior violent con-
duct in criminal homicide or battery cases under
the same circumstances specied in IRE 404(a)(2).
Thus, when the prerequisites of both IRE 404(a)
(2) and IRE 405(b)(2) are met in cases involving
homicide or battery offenses, both evidence of the
alleged victim’s character for peacefulness and
evidence of the alleged victim’s specic instances
of conduct are admissible.
deciSionS applying ire 404(a)(2)
For a discussion of the application of IRE 404(a)(2) and IRE
405(b)(2), see People v. Yeoman, 2016 IL App (3d) 140324,
¶¶ 28-29 (discussing effect of the two rules where defendant is
aware of the prior conduct of the alleged victim (for its effect on
defendant’s state of mind) or where defendant is unaware of the
alleged victim’s prior conduct (to bolster defendant’s claim that
the alleged victim was the initial aggressor where the evidence
related to self-defense is conicting)). See also People v. Gibbs,
2016 IL App (1st) 140785, ¶¶ 33-34 (holding that trial court
did not abuse its discretion in allowing stipulation to 14-year-
old conviction of complaining witness for domestic violence,
while not allowing cross-examination concerning details
that led to conviction: “Nowhere does Lynch require that the
court must allow live testimony on the issue of a victim’s prior
conviction. Rather, it is only where the evidence of a victim’s
violent character is based on arrests or altercations for which
there was no conviction that live testimony is required.”);
People v. Morgan, 197 Ill. 2d 404 (2001) (holding no error in
trial court’s excluding proffered evidence concerning the abuse
inicted on defendant’s mother by her parents during her child-
hood many years before where defendant sought admission,
under Lynch, of evidence corroborative of his similar abuse by
his grandparents for the purpose of justifying killing them in
self-defense, where the evidence was too remote and defen-
dant had no knowledge of his mother’s prior abuse); People v.
Barnes, 2017 IL App (1st) 143902, ¶ 49 (relying on Morgan,
in holding that “remoteness in time is a valid consideration in
determining whether it is reasonable for the trial court to allow
the admission of evidence pursuant to Lynch”).
In People v. Evans, 2018 IL App (4th) 160686, where
defendant was convicted by a jury of aggravated domestic
battery and domestic battery and where defendant alleged
self-defense, the appellate court held that the trial court had
properly ruled inadmissible the post-offense conduct of
defendant’s female victim. The excluded post-offense evidence
involved the victim’s having been charged for damaging defen-
dant’s siding and vehicle and phone video showing the victim
pouring liquid on defendant and setting re to his beard with a
cigarette. The appellate court reasoned that, though the victim’s
aggressive and violent character may support a self-defense
claim by showing that defendant’s knowledge of the victim’s
aggressive and violent character affected his perception of the
victim’s actions and his reactions to those actions, “information
unknown to a defendant at the time of the incident could not
have impacted the defendant’s perceptions of the victim’s
actions.” Evans, at ¶ 30. As for the holding in Lynch that a
victim’s “aggressive and violent character is relevant to show
who was the aggressor, and the defendant may show it by
appropriate evidence, regardless of when he learned of it” (id.,
citing Lynch, 104 Ill. 2d at 200), the appellate court noted that
defendant had relied upon IRE 404(a)(2) in seeking admission
of the evidence (and not that the victim was biased or had some
unknown motive for testifying against him), and it held that
“Lynch does not stand for the proposition a victim’s actions
after the day of the charged offense should be admissible to
show whether the victim was the aggressor at the time of the
charged offense.” Id.
Related to the prosecution’s right to rebut character evi-
dence of a victim, see People v. Knox, 94 Ill. App. 2d 36 (1968)
(defendant’s attack on the character of the victim of a murder
offense, through the cross-examination of two State witnesses,
allowed the State to provide evidence of the victim’s good
reputation during the State’s case-in-chief).
People v. Hamilton, 2019 IL App (1st) 170019, is notewor-
thy on the issue of the defendant’s state of mind, although it is
not directly related to IRE 404(a)(2) and though the appellate
court stated that “Lynch is irrelevant” (id. at ¶ 34). In that case,
68RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
COMMENTARY CONTINUED
the appellate court, with one judge dissenting, reversed the
defendant’s conviction for rst degree murder based on defense
counsel’s providing ineffective assistance of counsel by failing
to properly argue for the admission of evidence by the defen-
dant’s girlfriend that, although no gun was found on the victim,
the victim carried a gun and that the defendant knew that the
victim carried a gun—evidence that the majority reasoned
would have supported his theory of self defense. Holding that
“the testimony at issue was relevant for the limited and nuanced
purpose of representing the defendant’s state of mind at the
time he shot [the victim]” (id. at ¶ 35 (emphasis in original)),
the court criticized defense counsel for not having made offers
of proof regarding the proffered testimony and for not arguing
that the evidence was relevant to corroborate defendant’s belief
and state of mind in the need for self-defense.
Author’s Commentary on Ill. R. Evid. 404(a)(3)
IRE 404(a)(3), which applies in both civil and criminal cases,
is identical to the federal rule before the latter’s amendment
solely for stylistic purposes effective December 1, 2011. Its
provisions are summarized in item number (3) under the next
heading at the end of this commentary, which summarizes all
three of IRE 404(a) subdivisions.
Summary of ire 404(a)(1), (2), and (3)
In sum, the specied exceptions to the general rule of
non-admissibility of character evidence, which is provided by
the three subdivisions of IRE 404(a) mean that:
(1) in a criminal case, under IRE 404(a)(1), a per-
tinent character trait of the defendant, offered by
the defendant, is admissible as evidence that the
defendant may have acted in conformity with that
character trait, and evidence offered by the pros-
ecution to rebut such evidence also is admissible;
(2) in a criminal case—subject to the limitations
placed on such evidence by the rape shield law—
under IRE 404(a)(2), a pertinent character trait of
the alleged victim, offered by the defendant, is
admissible as evidence that the alleged victim may
have acted in conformity with that character trait,
and evidence by the prosecution to rebut such
evidence also is admissible; and
(3) in both civil and criminal cases, under IRE
404(a)(3), character evidence is admissible under
IRE 607 (for impeachment purposes), IRE 608
(character evidence of untruthfulness of a witness,
or of truthfulness to rebut such evidence), and IRE
609 (evidence of a prior conviction of a witness to
attack the witness’s credibility).
Author’s Commentary on Fed. R. Evid. 404(b)
december 1, 2020 amendmentS to fre 404(b)
FRE 404(b) was amended effective December 1, 2020. In
the words of the commentary accompanying the amended
rule, “Rule 404(b) has been amended principally to impose
additional notice requirements on the prosecution in a criminal
case. In addition, clarications have been made to the text and
headings.”
The “clarications” provided in the text and headings of the
amended rule are not substantive. But the amendment of FRE
404(b)(2) and the deletion of what was that rule’s subdivisions
(A) and (B), and their replacement with what is now FRE 404(b)
(3) and its subdivisions (A), (B), and (C) do represent substantive
changes.
The amendments end the previous burden placed on a
defendant in a criminal case to request notice of the prosecu-
tion’s intent to offer evidence at trial of a crime, wrong, or other
act—as permitted by FRE 404(b)(2)—to prove motive, opportu-
nity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. Under newly added FRE 404(b)(3)
and its added subdivisions (A), (B), and (C), the burden is now
placed on the prosecution to provide notice of its intent to offer
evidence of a crime, wrong, or other act previously permitted
by common law.
69ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
In sum, the amended rules require the prosecution to inform
the defendant of its intent to offer the evidence without a
request by the defendant, to do so pretrial within a reasonable
time “so that the defendant has a fair opportunity to meet it,”
and to “articulate in the notice the permitted purpose for which
the prosecutor intends to offer the evidence and the reasoning
that supports the purpose.”
Note that, consistent with a relevant Illinois statute, IRE
404(c) provides for similar notice from the prosecution as is
now provided by the federal rule.
differenceS in federal and illinoiS rule 404(b)
As the last two headings under this commentary and the
next commentary on IRE 404(b) make clear, to fully appreciate
the following discussion of FRE 404(b), the difference between
the two 404(b) rules must be emphasized. The federal rule does
not permit evidence of other crimes, wrongs, or acts to prove
propensity, as does the Illinois rule through its cited statutory
provisions. The federal rule permits evidence of other crimes,
wrongs, or acts, not to establish character or for propensity
purposes, but to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident—all well established common-law principles and all
of which also are permitted by the Illinois rule. But note the
admonition provided by the Seventh Circuit in United States v.
Lowe, 2F.4th 652 (7th Cir. 2021):
“Of course, ‘Rule 404(b)(2)’s list is ‘not exhaus-
tive.’” United States v. Torres-Chavez, 744 F.3d
988, 991 (7th Cir. 2014) (quoting United States
v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008)).
For example, we have held that evidence of a
defendant’s involvement in ‘a home invasion and
shooting earlier that night’ can be admissible to
prove that the defendant unlawfully possessed a
rearm later that night. United States v. Canady,
578 F.3d 665, 677 (7th Cir. 2009).” Lowe, 2F.4 at
656.
U.s. v. gomez: a new framework for admiSSibility of “other-act
evidence”
In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014), the
Seventh Circuit Court of Appeals, sitting en banc, replaced the
four-part test it had previously employed for admitting other-act
evidence, in favor of “an approach that more closely tracks the
Federal Rules of Evidence.” Gomez, 763 F.3d at 850. The court
offered the following summary of the new framework:
“In sum, to overcome an opponent’s objection
to the introduction of other-act evidence, the
proponent of the evidence must rst establish
that the other act is relevant to a specic purpose
other than the person’s character or propensity to
behave in a certain way. See FED. R. EVID. 401,
402, 404(b). Other-act evidence need not be
excluded whenever a propensity inference can be
drawn. But its relevance to ‘another purpose’ must
be established through a chain of reasoning that
does not rely on the forbidden inference that the
person has a certain character and acted in accor-
dance with that character on the occasion charged
in the case. If the proponent can make this initial
showing, the district court must in every case
assess whether the probative value of the other-act
evidence is substantially outweighed by the risk
of unfair prejudice and may exclude the evidence
under Rule 403 if the risk is too great. The court’s
Rule 403 balancing should take account of the
extent to which the non-propensity fact for which
the evidence is offered actually is at issue in the
case.” Id. at 860.
Under Gomez’s framework, then, a two-step process is
applied when the party-opponent objects to the admission of
a crime, wrong, or other act: (1) the proponent of the evidence
must rst establish that the evidence should be admitted not
to prove character but for a relevant purpose permitted by
FRE 404(b)(2) (i.e., relevant under Rules 401 and 402 to prove
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident), and (2) the
trial court must determine that Rule 403’s requirement that the
evidence’s probative value is not substantially outweighed by
unfair prejudice.
In Gomez, in applying the new framework, the entire en
banc court found that, because there was no issue concerning
COMMENTARY CONTINUED
70RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
intent in this general intent crime and the defendant did not
contest intent, the trial court erred in admitting evidence of a
small quantity of cocaine found in the defendant’s pants pocket
in his bedroom in this trial for conspiracy to distribute cocaine,
but a majority of the court found the error to be harmless. In a
later case, United States v. Stacy, 769 F.3d 969 (7th Cir. 2014),
the court applied the new framework in nding that evidence
of the defendant’s prior possession of methamphetamine was
improper to prove his intent to use pseudoephedrine to make
methamphetamine, but in this case too, the court found the
error to be harmless.
For other examples of the application of Gomez, see:
• United States v. Morgan, 929 F.3d 411 (7th Cir.
2019) (where defendant conceded possession of
methamphetamine but denied intent to distribute,
it was proper to admit testimony of three Rule
404(b) witnesses to establish defendant’s intent to
distribute; and noteworthy for stressing the need
for the trial court not to vaguely instruct the jury
not to consider the 404(b) evidence for “other pur-
poses,” but rather to explicitly instruct the jury that
defendant’s past acts are not to create an inference
that the defendant is a person whose past acts sug-
gest a willingness or propensity to commit crimes).
• United States v. Norweathers, 895 F.3d 485 (7th
Cir. 2018) (in prosecution for transporting and pos-
sessing child pornography, court approved admis-
sion of evidence of uncharged email exchange
between defendant and another individual about
drugging and having sex with young boys for pur-
poses of proving identity, intent, and motive where
defendant contended pretrial that another person
had briey logged into his email account).
• United States v. Thomas, 897 F.3d 807 (7th Cir.
2018) (recognizing as understandable witness’s
unsolicited and potentially prejudicial answers to
questions posed by prosecutor—answers regard-
ing three uncharged allegedly criminal acts by
defendant—given prosecutor’s pretrial disclosure
concerning her inability to control witness, and
nding no error and holding that the trial court
was under no duty to provide an unsolicited
curative instruction to the jury, under the holding
in Gomez, which expressed “caution against judi-
cial freelancing in this area because sua sponte
limiting instructions ... may preempt a defense
preference to let the evidence come in without the
added emphasis of a limiting instruction.” Thomas,
897 F.3d at 813, citing Gomez, 763 F.3d at 869
(internal quotation marks omitted)).
• United States v. Brewer, 915 F. 3d 408 (7th Cir.
2019) (in a bank-robbery conviction that occurred
in Indiana, afrming admission of evidence of
unindicted robberies in Ohio and California, over
defendant’s contention about dissimilarities among
the robberies, pointing out that modus operandi
means “a ‘distinctive’—not identical—‘method of
operation.’” Brewer, 915 F. 3d at 416).
• United States v. Thomas, 986 F.3d 723 (7th Cir.
2021) (in this jury trial for mail fraud based on
defendant’s using the mail to collect four checks
in insurance money totaling $426,227.31 for a re
to a mobile home owned by him, applying Gomez
and holding that evidence of insurance money paid
to defendant for four other res in homes owned by
him, or in which he had an interest, as well as two
other houses burned as a diversion, was properly
admitted as direct evidence of defendant’s scheme
to defraud and not “other acts” under Rule 404(b),
and holding further that evidence of an earlier
re that was too far removed in time to be part of
the scheme was properly admitted as evidence of
defendant’s modus operandi).
• United States v. Lowe, 2 F4th 652 (7th Cir. 2021)
(noting prior Seventh Circuit concerns about using
other-acts evidence merely to “complete the story”
or to show “background” or “the course of investi-
gation,” compiling the evidence linking a handgun
found in a dumpster to the defendant in holding
that evidence of shots red in the area where the
COMMENTARY CONTINUED
71ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
COMMENTARY CONTINUED
defendant was, just moments after the shots were
red, was properly admitted, reasoning, “In short,
while ‘complete-the-story evidence’ is suspect,
relevant other-act evidence generally may be
admitted under Rule 404(b) ‘when its admission
is supported by some propensity-free chain of rea-
soning.’ United States v. Gomez, 763 F.3d 845, 856
(7th Cir. 2014) (citing, among other cases, United
States v. Lee, 724 F.3d 968, 978 (7th Cir. 2013)).
‘This is not to say that other-act evidence must be
excluded whenever a propensity inference can be
drawn; rather, Rule 404(b) excludes the evidence
if its relevance to ‘another purpose’ is established
only through the forbidden propensity inference.’
Id.” Lowe, 2 F4th at 656 (emphasis is the court’s).
• United States v. Jarigese, 999 F.3d 464, (7th Cir.
2021) (in this prosecution for wire fraud and
bribery involving defendant’s bribery of the mayor
of Markham, it was proper to admit evidence that
the mayor accepted bribes from other persons
who were not on trial, because the evidence of the
other bribes were not “other bad acts” under FRE
404(b), but rather they were directly relevant to
proving the charged scheme that the mayor, defen-
dant, and the others were engaged in a scheme to
defraud the City of Markham of money through the
mayor’s soliciting and the others paying bribes in
exchange for contracts with Markham, where the
same scheme to conceal payments to the mayor
in providing money to companies he controlled
and which did nothing to earn the payments were
involved, just as applied in a conspiracy case).
exampleS of deciSionS before gomez
For an example of a case applying the test for FRE 404(b)
(again, not for propensity purposes, but for the common-law
purposes allowed by the rule) before the en banc Gomez
decision, see United States v. Howard, 692 F.3d 697 (7th Cir.
2012), where, in reviewing a criminal conviction, the Seventh
Circuit afrmed the admissibility of the defendant’s numerous
prior bad acts. In doing so, the court held that admissibility of
the prior acts was established by applying a four-part test:
“(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propen-
sity to commit the crime charged; (2) the evidence
shows that the other act is similar enough and
close enough in time to be relevant to the matter
in issue; (3) the evidence is sufcient to support a
jury nding that the defendant committed the sim-
ilar act; and (4) the probative value of the evidence
is not substantially outweighed by the danger of
unfair prejudice.” Howard, 692 F.3d. at 703.
The court held that the rst prong of the test was satised
in this case because the prior bad acts provided evidence of
motive, intent, plan, and preparation. Moreover, the court
held, the acts were similar to and close enough in time to be
relevant, the evidence of their commission was sufcient to
establish that the defendant had committed them, and the Rule
403 balancing test was satised, especially in light of the trial
court’s numerous limiting instructions to the jury.
In United States v. Chapman, 692 F.3d 822 (7th Cir. 2012),
another case that preceded the new framework provided by
Gomez, the Seventh Circuit applied the same four-part test in
upholding, under FRE 404(b), the admission of evidence of the
defendant’s 2004 forgery conviction in a prosecution for forg-
ery offenses that occurred approximately two years after that
2004 conviction. Holding that the prior conviction “shed light
on the questions of intent and lack of mistake” (Chapman, 692
F.3d at 827), the court rejected the defendant’s contention that
the conviction was improperly admitted to prove propensity
by suggesting to the jury “once a forger, always a forger.” Id.
at 826-27. The court also held that the other prongs of the test
had been satised.
In United States v. Perkins, 548 F.3d 510 (7th Cir. 2008),
where the defendant was tried for possession with intent
to distribute crack cocaine, the Seventh Circuit upheld the
admission of the defendant’s two prior convictions for unlawful
possession of cocaine and one conviction for unlawful delivery
of cocaine. Applying the four standards that applied before the
Gomez decision, the court held that the evidence of the defen-
72RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
dant’s convictions were probative of his “knowledge of cocaine
and crack cocaine, and were not intended to show a propensity
to commit the crimes charged.” Id. at 514. Noting that the
defendant denied that the cocaine found in his residence was
his, the court concluded that he impliedly denied his intent to
distribute the drug and, because he was charged with a specic
intent crime, his three convictions established his “knowledge
of the respective value of even small quantities of cocaine,
which is evidence of his intent to distribute.” Id. Citing United
States v. Puckett, 405 F.3d. 589 (7th Cir. 2005), where the
court also concluded that a prior conviction for distribution of
crack cocaine was admissible where the charged act involved
distribution of cocaine, and United States v. Hernandez, 84
F.3d 931 (7th Cir. 1996), where the court held that “a prior
conviction for possession of marijuana was ‘similar enough’ for
Rule 404(b) purposes to charged crimes of distributing cocaine
and heroin, even though different drugs were involved” (id. at
515), the court held that the defendant’s three prior convictions
were substantially similar to the charged offense.
other noteworthy deciSionS
In United States v. Taylor, 701 F. 3d 1166 (7th Cir. 2012),
two guns possessed and abandoned by uncharged men, who
were arrested in connection with shootings committed by the
defendant, were admitted into evidence. The Seventh Circuit
rejected the defendant’s argument based on the other-crimes
prohibition of FRE 404(b), pointing out that “[t]he language
of Rule 404(b) does not apply to crimes, wrongs, or acts of
another person.” Taylor, 701 F.3d at 1172.
United States v. Turner, 709 F.3d 1187 (7th Cir. 2013),
presents an example of a reversal of drug-related convictions
based upon the improper admission of prior-crime evidence
under FRE 404(b). In that case, the defendant was convicted of
possession of cocaine with intent to distribute and possession
of a rearm in furtherance of that offense. The convictions were
based on evidence recovered through the 2008 execution of a
search warrant on a home. At trial, the defendant denied that
the cocaine found in the home was his. He did not deny that the
quantity and packaging of the cocaine established that it was
intended for distribution. The defendant’s conviction in 2000
for possession of cocaine with intent to distribute was admitted
under FRE 404(b) for the purpose of proving intent. Concluding
that the admitted other-crime evidence was not relevant to
establish intent given the defendant’s specic defense denying
possession, the court reversed the convictions. Pointing out the
limitations on the admission of other-crimes evidence under
FRE 404(b), and the danger of a jury’s interpreting such evi-
dence as connected to propensity, the court admonished trial
courts to apply fact-specic analysis to individual cases.
diStinguiShing fre 404(b) from ire 404(b)
Unlike IRE 404(b), which permits propensity evidence
under specied Illinois statutes, FRE 404(b) provides no excep-
tions that permit other-act evidence for propensity purposes.
The decision in United States v. Richards, 719 F.3d 746 (7th
Cir. 2013) illustrates the difference between the common-law
exceptions permitted by the rule versus character evidence to
prove propensity as allowed in some instances by the Illinois
rule, which the federal rule does not permit. In Richards, the
Seventh Circuit held that the defendant’s prior bad acts were
properly admitted for the permissible purpose of showing his
knowledge that a bag in his possession contained narcotics, the
defendant having denied knowledge of its contents. In closing
arguments, however, the prosecutor improperly used the prior
bad acts to argue the defendant’s propensity to deal drugs—
resulting in the court’s nding of prejudice and the reversal of
the conviction and the remand of the case for a new trial.
diStinguiShing fre 404(b) from fre 413 and fre 608(b)
The “crimes, wrongs, or other acts” of FRE 404(b) should
be distinguished from those admissible under FRE 413 and
FRE 608(b). Proof of bad acts under FRE 404(b) is admissible
in federal cases only to show non-character purposes such
as “motive, opportunity, intent, plan, knowledge, identity, or
absence of mistake or accident.” Proof of similar crimes in sex-
ual assault cases, however, is allowed for propensity purposes
under FRE 413. Also, proof of bad acts under FRE 608(b) (under
the label of “specic instances of conduct”) are admissible
pursuant to cross-examination in federal cases for the limited
purpose of attacking a witness’s character for untruthfulness.
COMMENTARY CONTINUED
73ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
Author’s Commentary on Ill. R. Evid. 404(b)
Like IRE 404(a), which prohibits character evidence to prove
propensity but then offers exceptions to the rule, the rst part
of IRE 404(b) prohibits evidence of other crimes, wrongs, or
acts to prove the character of a person to show propensity but
then offers exceptions to that general rule. This commentary
explains IRE 404(b)’s general rule and its exceptions.
differenceS and SimilaritieS in the illinoiS and the federal verSionS
of rule 404(b)
IRE 404(b) is similar to FRE 404(b) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. But the Illinois rule differs from its federal counterpart by
virtue of the Illinois rule’s allowance of certain offenses through
specic criminal statutes in the Code of Criminal Procedure
of 1963—statutes that allow proof of other offenses “to show
action in conformity therewith” (i.e., propensity evidence). IRE
404(b)’s provisions may be summarized as follows:
(1) consistent with common-law principles, the
rule generally prohibits other-crime evidence
designed to show propensity (see e.g., People v.
Heard, 187 Ill. 2d 36 (1999); People v. Kliner, 185
Ill. 2d 81 (1998); People v. Illgen, 145 Ill. 2d 353
(1991); People v. Lindgren, 79 Ill. 2d 129 (1980));
(2) despite that general common-law prohibition,
however, the rule abrogates the common law by
exempting from the general rule of exclusion pro-
pensity evidence that is allowed for the offenses
and under the procedures provided in the rule’s
specied statutes; and
(3) consistent with common-law principles, the
rule allows a range of other-crime evidence for
non-character purposes (i.e., for non-propensity
purposes) such as those enumerated in the rule’s
second sentence.
Note that items (1) and (3) above apply to both the Illinois
and the federal version of Rule 404(b). The difference between
the two rules lies in item (2) above: in contrast to the federal
rule, the Illinois rule allows admission of specied other-crimes
evidence for propensity purposes. But note that FRE 413
admits, for propensity purposes, offenses that are similar to the
offenses IRE 404(b) allows to be admitted through the statutes it
cites. So, though the two versions of Rule 404(b) differ, the end
result is the same: both sets of rules admit similar evidence for
propensity purposes, albeit the federal rule does so by applying
a different rule, FRE 413.
StatuteS cited in ire 404(b)
Regarding the subject matter of the statutes in the Code of
Criminal Procedure of 1963 that IRE 404(b) cites,
• section 115‑7.3 (725 ILCS 5/115-7.3) allows evi-
dence of certain sex offenses in prosecutions for
specied sex-related offenses;
• section 115‑7.4 (725 ILCS 5/115-7.4) allows
evidence of domestic violence offenses in prose-
cutions for domestic violence offenses; and
• section 115‑20 (725 ILCS 5/115-20) allows evi-
dence of prior convictions in prosecutions for any
of the type of offenses it lists.
The three statutes are provided in the appendix to this
guide. Section 115-7.3 is at Appendix A; section 115-7.4 is
at Appendix B; and section 115-20 is at Appendix C. (These
statutes parallel some of the subject matter and virtually all
the procedures provided by FRE 413 and FRE 414. For more
on the three statutes, in addition to their availability in the
appendix, see the Author’s Commentary on Ill. R. Evid. 413
and the Author’s Commentary on an Illinois Statute that is a
Counterpart to Fed. R. Evid. 414.) Each of the statutes allows
evidence of other specic instances of conduct of the defen-
dant “and may be considered for its bearing on any matter to
which it is relevant.” All three statutes also allow expert opinion
testimony, as well as reputation testimony when the opposing
party has offered reputation testimony.
conStruing Section 115-20
Regarding section 115-20, see People v. Chambers, 2011
IL App (3d) 090949, where, in construing subdivision (d)
of section 115-20, which requires the State’s disclosure of
evidence, “including statements of witnesses or a summary
of the substance of any testimony,” together with subdivision
(e), which refers to proof by “specic instances of conduct,”
the appellate court held admissible not only a conviction for
COMMENTARY CONTINUED
74RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
the prior offenses it lists, but also the evidence underlying the
conviction.
See also People v. Chapman, 2012 IL 111896, where the
supreme court held that it was proper to introduce evidence of
a prior domestic battery conviction in a prosecution for rst-de-
gree murder, where the victim in both offenses was the same
person. Later, in People v. Ross, 2018 IL App (2d) 161079, the
appellate court held that Chapman did not address the issue
before it, where in the case at bar a nonenumerated conviction
(battery; defendant was originally charged with domestic bat-
tery but convicted of battery) was admitted for a similar kind of
offense (murder), whereas Chapman involved an earlier con-
viction for an enumerated offense (domestic battery) and a later
prosecution for murder (one of the “types of offenses” to which
section 115-20 applies). Nonetheless, the court held, “we need
not resolve the issue, because the other-crimes evidence was
admissible under the common law and section 115-7.4.” Ross,
at ¶ 175.
See also People v. Fields, 2013 IL App (3d) 080829-C,
where, in a prosecution for sex offenses, the appellate court
found no impropriety in the admission, for propensity purposes
under section 115-7.3, not only testimonial evidence about a
prior sex offense involving a different victim, but also evidence
of a conviction for that sex offense—although the court held
that the subsequent reversal of the conviction that had been
admitted into evidence required the reversal and remand of
the case at bar.
PeoPle v. Dabbs: blueprint for underStanding ire 404(b)
The Illinois Supreme Court’s decision in People v. Dabbs,
239 Ill. 2d 277 (2010), predated the effective date of Illinois’
codied evidence rules by almost six weeks, but referred to the
then-pending rules generally and to IRE 404(b) in particular. It
succinctly summarized supreme court cases that have allowed
admissibility of other-crime evidence for non-propensity
purposes and, based on its ndings that the statute respects
traditional rules relevant to the admissibility of evidence and
that it meets constitutional muster, it upheld the validity and
applicability of section 115-7.4, which allows other-crime
evidence for propensity purposes in domestic violence cases.
In Dabbs, the supreme court provided a succinct sum-
mary—together with citations to its relevant decisions—con-
cerning the common-law principles embodied in IRE 404(b)
related to the admission of other-crimes evidence for reasons
other than propensity:
“As a common law rule of evidence in Illinois,
it is well settled that evidence of other crimes
is admissible if relevant for any purpose other
than to show a defendant’s propensity to commit
crimes. People v. Wilson, 214 Ill. 2d 127, 135-36
(2005). Such purposes include but are not limited
to: motive (People v. Moss, 205 Ill. 2d 139, 156
(2001) (evidence that defendant previously sex-
ually assaulted child properly admitted to show
his motive for murder of child and her mother)),
intent (Wilson, 214 Ill. 2d at 141 (evidence that
teacher previously touched other students in
similar manner properly admitted to show intent
in prosecution for aggravated criminal sexual
abuse of students)), identity (People v. Robinson,
167 Ill. 2d 53, 65 (1995) (evidence that defendant
previously attacked other similar victims in similar
manner properly admitted under theory of modus
operandi to show identity of perpetrator in pros-
ecution for armed robbery and armed violence)),
and accident or absence of mistake (Wilson, 214
Ill. 2d at 141 (evidence that teacher previously
touched other students in similar fashion properly
admitted to show lack of mistake in prosecution
for aggravated criminal sexual abuse of students)).”
Dabbs, 239 Ill. 2d at 283.
Three supreme court cases could be added to the supreme
court cases listed in the above quote, all of which approved
the admission of evidence, under common-law principles,
that the same or a similar gun was used by the defendant in
another offense in order to prove the defendant’s identity as
the offender in the case on trial: People v. Coleman, 158 Ill.
2d 319 (1994); People v. Richardson, 123 Ill. 2d 322 (1988);
People v. Taylor, 101 Ill. 2d 508 (1984).
COMMENTARY CONTINUED
75ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
The central issue in the Dabbs case involved the validity
of the propensity exception in section 115-7.4 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-7.4; see Appendix
B). During his trial for the offense of domestic violence on his
girlfriend, evidence was admitted, pursuant to the statute, of the
defendant’s domestic violence on his former wife. On review,
the supreme court rst noted that it had previously upheld the
constitutionality of section 115-7.3 (involving evidence of sim-
ilar offenses in sexual assault cases; see Appendix A) in People
v. Donoho, 204 Ill. 2d 159 (2003). It then considered whether
section 115-7.4 meets threshold requirements related to
admissibility of evidence. It concluded that, not only does the
statute not abrogate the principle that the decision regarding
the admission of evidence is within the sound discretion of the
trial court, it does not alter the principle that, to be admissible,
evidence must be relevant, and it does not abrogate the need
for the trial court to balance probative value with the risk of
undue prejudice.
The court then upheld section 115-7.4’s constitutionality,
rejecting the defendant’s due process claim, based on its
conclusions that there is no constitutional prohibition against
propensity evidence, that the common-law prohibition of
propensity evidence is an evidence rule that is subject to
exceptions, and that the relevant statute bore a rational rela-
tionship to a legitimate legislative purpose. The supreme court
therefore held that the statute “permits the trial court to allow
the admission of evidence of other crimes of domestic violence
to establish the propensity of a defendant to commit a crime
of domestic violence if the requirements of the statute and of
other applicable rules of evidence are met.” Dabbs, 239 Ill.2d
at 295.
Supreme court pre-codification deciSionS relevant to ire 404(b)
In addition to the decisions provided by Dabbs in the quote
above, a number of pre-codication supreme court decisions
provide guidance in the application of IRE 404(b):
• People v. Heard, 187 Ill. 2d 36 (1999) (holding
that evidence of three prior crimes revealed defen-
dant’s continuing hostility and animosity toward
the murder victims and intent to harm them,
and thus the evidence was properly admitted to
prove defendant’s motive and intent to commit the
murders).
• People v. Kliner, 185 Ill. 2d 81 (1998) (in a
prosecution for murder, holding evidence that
defendant had allegedly pistol-whipped a witness,
who was his former girlfriend, was not relevant to
establish any material question, and that introduc-
ing such evidence to show that defendant was a
bad person who had a propensity to commit crime
or to enhance the credibility of a witness was not
proper).
• People v. Placek, 184 Ill. 2d 370 (1998) (holding
that in a prosecution for delivery of a controlled
substance, the State improperly presented evi-
dence concerning the recovery of stolen property
from defendant’s barn and made references in
opening statements and through evidence to
defendant’s dealing in stolen auto parts).
• People v. Illgen, 145 Ill. 2d 353 (1991) (citing
other cases that provided non-propensity bases for
admission of prior acts of violence, and holding
that evidence that defendant physically abused
and verbally threatened his wife throughout their
marriage was properly admitted as probative of
defendant’s criminal intent by tending to negate
the likelihood that the shooting that caused his
wife’s death was an accident and thereby tended
to prove his intent, and also that the evidence was
relevant to show their antagonistic relationship
and thus tended to establish defendant’s motive to
kill his wife).
• People v. Lindgren, 79 Ill. 2d 129 (1980) (holding
evidence of arson of defendant’s ex-wife’s home
committed by defendant after defendant commit-
ted a murder should not have been admitted as
part of a continuing narrative because it was a
distinct crime undertaken for different reasons at a
different place and at a separate time).
COMMENTARY CONTINUED
76RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
applying SectionS 115-7.3 and 115-7.4
For samplings of appellate court opinions applying section
115‑7.4 (see Appendix B), in approving the admission of evi-
dence of prior acts related to domestic violence, see:
• People v. Kitch, 2019 IL App (3d) 170522, ¶ 33
(noting that section 115-7.3(c)(1), as pointed out
by the supreme court in People v. Donoho, 204 Ill.
2d 159, 183-84 (2003), does not provide a “bright
line rule about when prior convictions are per se
too old to be admitted,” and holding it was proper
to admit, for propensity purposes, defendant’s prior
offense that occurred 13 years before the charged
offenses where defendant had spent nearly seven
years of the 13-year period incarcerated and had
been released from prison approximately six years
before committing the present offenses (for other
decisions addressing the time difference between
offenses, see the discussion under the heading,
Time Between Prior Act and Offense on Trial under
the Author’s Commentary on Ill. R. Evid. 413,
infra));
• People v. Kelley, 2019 IL App (4th) 160598 (in
jury prosecution for murder of victim on whom
defendant had previously committed domestic
violence, (1) trial court properly admitted evidence
of violence on another woman whom he battered
after she, like the murder victim, had taken money
from him, and fact that the propensity witness was
a prostitute and thus the offense did not qualify as a
“domestic violence” under the relevant statute was
forfeited by defendant’s not objecting on that basis
and plain error not established; and (2) although
the trial court may have erred in comparing what
happened to a second propensity witness to other
propensity evidence rather than to the charged or
predicate offense, the witness’s admitted evidence
properly established that “defendant was posses-
sive and controlling toward his girlfriends and that
he tended to become violent toward them when
they did anything that challenged his assumed
right of possession and control.” Kelley, at ¶ 107);
• People v. Ross, 2018 IL App (2d) 161079 (noting
that sections 115-7.3 and 115-7.4 “are nearly
identical, with section 115-7.3 addressing prior
incidents of sexual abuse, and section 115-7.4
addressing prior incidents of domestic violence”
(id. at note 4); citing decisions that hold that “the
other-crimes evidence must bear merely ‘general
similarity’ to the charged offense” (id. at ¶ 173);
citing the supreme court decision in People v.
Donoho, 204 Ill. 2d 159, 184-85 (2003), where
the prior offense was 12-15 years earlier and
other appellate court decisions where the offenses
ranged from 6 to 20 years earlier, and thus holding
that the time lapse of nearly ve years in the case at
bar did not affect admissibility of the prior offenses
(id.); and holding that the trial court had not erred
in admitting defendant’s conviction for battery
of the victim who was later murdered, based on
his plea of guilty to that offense from the original
charge of domestic battery, and the admission of
evidence of defendant’s battery against the same
victim, even though the charge for that offense had
been nolle prossed by the State (id. at ¶ 174));
• People v. Heller, 2017 IL App (4th) 140658 (in
jury prosecution for domestic violence, proper to
admit recording of the victim, defendant’s ancée,
as substantively admissible after she testied she
did not recall having made the statements; also
proper to admit, under section 115-7.4 for pro-
pensity purposes, testimony of defendant’s former
wife who testied about similar earlier domestic
violence, with court rejecting defendant’s claim of
undue focus on that other-crimes evidence);
• People v. Nixon, 2016 IL App (2d) 130514 (apply-
ing IRE 404(b) and section 115-7.4 in afrming
trial court’s admission of defendant’s prior offense
six-years earlier, where he shot the victim in a
nger and a shoulder, in a jury trial for an offense
COMMENTARY CONTINUED
77ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
involving shooting at the same victim’s car, for
both propensity purposes and for the non-propen-
sity common-law bases provided by IRE 404(b));
• People v. Jackson, 2014 IL App (1st) 123258 (only
general similarity of offenses is necessary, and
prior offenses were proximate in time, one occur-
ring about a year and a half before and the other
ve weeks before the charged offenses).
For a sampling of appellate court opinions applying section
115‑7.3 (see Appendix A), in approving the admission of evi-
dence of prior and subsequent sexual offenses, see:
• People v. Bedoya, 2021 IL App (2d) 191127,
¶¶ 90-105 (in a prosecution for eight counts of
predatory criminal sexual assault of a child, in
response to the defendant’s contentions concern-
ing numerous factual dissimilarities (primarily
about where the incidents occurred) between the
testimony of the youthful victim concerning the
charged offenses and the testimony of two other
boys concerning uncharged offenses, and with
heavy reliance on section 115-7.3 and People v.
Donoho, 204 Ill. 2d 159 (2003), holding that the
trial court had not abused its discretion in admit-
ting the testimony of the other boys because “the
evidence was sufciently similar to the charged
conduct and not overly prejudicial.” Id. at ¶ 97.
• People v. Nevilles, 2021 IL App (1st) 191388,
¶¶ 76-83 (holding that defendant was not preju-
diced by the joinder of defendant’s separate sex
offenses against two girls under the age of 18, since
the statements of each victim would have been
admitted in a separate trial of either victim to show
motive, intent, knowledge, absence of mistake
and modus operandi, as well as propensity under
section 115-7.3, and that the trial judge did not
abuse its discretion in allowing the admission of
a witness’s testimony about defendant’s statements
after the dates the offenses were committed and
statements made by another witness that conicted
with relevant dates provided by one of the victims.
• People v. Petrakis, 2019 IL App (3d) 160399
(afrming admission of evidence of defendant’s
prior offenses of aggravated criminal sexual abuse,
which is made admissible under section 115-7.3,
insofar as those offenses related to the instant
prosecution for the charged offense of aggravated
criminal sexual abuse; accepting State’s conces-
sion that evidence of defendant’s prior offenses
for prostitution was improperly admitted because
that offense is not listed in section 115-7.3, but
noting that IRE 404(b) provides exceptions to
the general rule of inadmissibility, thus holding
that the common-law exceptions provided by
IRE 404(b) allowed the admission of defendant’s
prior offenses for prostitution to prove motive and
intent related to the charged offenses of juvenile
prostitution and promoting prostitution, especially
given the trial court’s instruction to the jury limit-
ing consideration of the evidence of defendant’s
prior acts on the issue of his intent, motive, design
or knowledge; holding further that, based on the
overwhelming evidence of defendant’s guilt of
aggravated criminal sexual assault (the only offense
on which defendant was convicted), even if the
evidence of defendant’s prior prostitution offenses
was wrongly admitted, the error was harmless);
• People v. Johnson, 2014 IL App (2d) 121004 (in
addition to upholding the admission of other
sexual offenses for propensity purposes under sec-
tion 115-7.3 and also to prove intent, nding no
reversible error where the jury was also improp-
erly instructed on motive, identity, and absence of
mistake—despite nding that it was improper for
the trial court to admit the other-crimes evidence
for those purposes, where the defense was con-
sent—citing People v. Jones, 156 Ill. 2d 225, 240
(1993) (“Other crimes evidence that is admissible
for one reason is not affected by inadmissibility for
another reason”)).
COMMENTARY CONTINUED
78RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
• People v. Williams, 2013 IL App (1st) 112583
(afrming a conviction for aggravated criminal
sexual assault and approving the admission of
evidence of a prior aggravated sexual assault
offense for propensity purposes, after weighing
the probative value of the evidence of the prior
offense against undue prejudice to the defendant
as required by section 115-7.3(c) (725 ILCS
5/115-7.3(c)).
• People v. Braddy, 2015 IL App (5th) 130354 (in
prosecution for sexual offenses committed by
defendant against his 13-year old daughter and the
14-year old daughter of his live-in girlfriend, proper
to admit evidence of sexual offenses committed by
defendant beginning when he was 11-years-old
against his then 8-year-old sister approximately 20
years before).
For an example of a decision holding that the admission of
evidence offered under IRE 404(b) was improper, see People
v. Gregory, 2016 IL App (2d) 140294 (holding that portions
of letters written by defendant were minimally relevant for the
purpose of proving identity, but that substantial parts were not
relevant to prove any material fact relevant to the case and
“because the evidence of unrelated offenses was so voluminous
and inammatory, there was a great risk that the jury would
nd defendant guilty of the charges in light of his propensity,
or that it would nd defendant guilty not of the charges but
instead of one of the uncharged acts.” (Gregory, at ¶ 26)).
See also People v. Lamonica, 2021 IL App (3d) 200136 (in
reversing conviction for aggravated criminal sexual assault,
criticizing the fact that the State created a mini trial for the prior
bad acts in comparison to the evidence for the charged offense,
where the State had failed to prove force or threat of force and
failed to disprove defendant’s defense of consent by the alleged
victim; and further holding that the prior bad acts evidence
was factually dissimilar to the charged conduct.) Lamonica, at
¶¶ 48-54.
PeoPle v. Potts: primer on diStinguiShing other-crimeS evidence
for propenSity and non-propenSity purpoSeS in jury inStructionS
People v. Potts, 2021 IL App (1st) 161219 ¶¶ 171-225, mer-
its special attention for its in-depth discussion concerning jury
instructions in a rst-degree murder conviction. At trial, the
circuit court admitted evidence of defendant’s acts of domestic
violence against two other women as evidence of his propen-
sity to kill the female victim, as well as other various kinds of
uncharged conduct to prove his motive for killing the victim
and/or the victim’s state of mind. Because the alleged errors in
the jury instructions were not properly preserved for appeal,
the appellate court applied plain error review of those alleged
errors and of the alleged ineffective assistance of counsel based
on counsel’s failure to object to the relevant instruction.
On his contention concerning the jury instruction, defen-
dant argued that the instruction improperly allowed and even
instructed the jury to consider all other-crimes evidence as pro-
pensity evidence. The instruction the trial court provided to the
jury was based on Illinois Jury Pattern Instructions, Criminal,
No. 3.14 (4th ed. 2000) (“IPI Criminal 4th No. 3.14”). The
modied instruction given to the jury read:
“Evidence has been received that the defendant has
been involved in offenses other than that charged
in the indictment. This evidence has been received
on the issues of the defendant’s propensity, motive,
and state of mind and may be considered by you
only for those limited purposes.”
Noting that the instruction “incorrectly implied that oth-
er-crime evidence was admitted as proof of his state of mind
but not [the victim’s] as well,” because defendant did not
seek relief on this basis on appeal, the appellate court did not
address it. Potts, at ¶ 182. But addressing defendant’s focus on
the instruction’s not delineating which other-crimes evidence
the jury could properly consider for each of the listed pur-
poses, the appellate court pointed out the “real dangers to the
defense in ‘delineating’ the permissible use[s] of each item of
other-crimes evidence in a jury instruction.” Id. at ¶ 184. Such
an instruction, the court reasoned, “would risk drawing undue
attention to damaging evidence.” Id.
COMMENTARY CONTINUED
79ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
COMMENTARY CONTINUED
Notwithstanding those considerations, the appellate court
held that the instruction given the jury was improper, reject-
ing the State’s contentions that the jury could sort out proper
application for the various offenses and, as a consequence, also
rejecting the State’s reliance on People v. Lopez, 371 Ill. App.
3d 920, 940 (2007), where only the non-propensity purposes of
intent, motive, or absence of mistake were listed. That holding,
the court reasoned, is distinguishable from the case at bar,
which invites propensity purposes even for offenses subject to
non-propensity purposes. Potts, at 186-89.
Having found the jury instruction in this case improper,
the appellate court considered options for properly instructing
future juries, pointing out serious and likely defense concerns
in their implementation (id. at ¶¶ 191-93), without settling
on any specic modications. Ultimately, the appellate court
considered each of the other crimes-evidence (which it pointed
out should be referred to as “other-offense evidence” and some
of which should be referred to as “other-conduct evidence” or
“bad conduct evidence”), and held that the erroneous instruc-
tion did not warrant reversal. Id. at ¶¶ 195-225. It also held
that, though defense counsel had been ineffective in permitting
an instruction that allowed a propensity inference to be drawn
by the jury, neither Strickland error or plain error occurred. Id.
at ¶¶ 218-19.
Later, in People v. McDaniel, 2021 IL App (2d) 190496,
a prosecution for sex offenses against two minors, the State
was allowed to admit evidence that defendant had previously
committed similar uncharged offenses against a third minor.
Concluding that defendant had raised an alibi defense and that
the jury should therefore be instructed on both identication
and propensity, the trial court provided the jury an instruction
that read:
“Evidence has been received that the defendant
has been involved in conduct other than those
charged in the indictment. This evidence has been
received on the issues of defendant’s identication
and propensity to commit sex offenses against
children and may be considered by you only for
that purpose. It is for you to determine whether
the defendant was involved in that conduct and, if
so, what weight should be given to this evidence
on the issues of identication and propensity to
commit sex offenses against children.”
Though defendant objected to the propensity references
in the State-provided instruction, he offered no alternative
jury instruction. The trial court gave the tendered instruction,
reasoning that “omitting a reference to propensity would not
give the jury a full, accurate description of the law because it
had allowed the other-crimes evidence on the issues of both
identication and propensity.” McDaniel, at ¶ 43.
Agreeing with the trial court and applying Potts, the appel-
late court reasoned that “had the jury instruction at issue here
omitted the reference to propensity, the State would have been
entitled to an instruction that the evidence could be considered
for propensity.” Id. at ¶ 65. The court thus distinguished the
decision in Potts by holding that “when, as here, the same
conduct is admitted for a limited purpose and also to prove a
defendant’s propensity, a trial court does not err by instructing
the jury it may consider the evidence for both propensity and
the limited purpose.” Id. at ¶ 66.
McDaniel’s holding is that the instruction given in that case
properly covered the same conduct of the defendant both for a
limited purpose and for the purpose of propensity. That holding
does not diminish the takeaway from Potts that judges, prose-
cutors, and defense attorneys must be mindful that IPI Criminal
4th No. 3.14, without appropriate modication on how to
address different conduct that is applied in different ways,
may seriously mislead jurors. Care must be taken to ensure
that jurors be properly informed of the correct application of
other-offense and other-conduct evidence.
Another decision involving appropriate instructions for
other-offense conduct is People v. Johnson, 2021 IL App (1st)
190567, where a majority of an appellate court panel reversed
a conviction for murder and use of a rearm in the course of
murder because the trial court failed to give the jury a limiting
instruction. The case focused on a recorded jail telephone call
involving the defendant, a conversation which could be inter-
preted as an effort to make a witness to the murder unavailable.
The majority held that the recorded phone conversation was
80RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
properly admitted as evidence of the defendant’s conscious-
ness of guilt.
But the majority’s focus was not on the propriety of the
admitted evidence, but on the jury instruction that was given
and the one that should have been given. The trial court
instructed the jurors that “they could consider the phone call
‘a statement relating to the offenses charged’ and that ‘[i]t is for
[the jury] to determine whether the Defendant made the state-
ment and, if so, what weight should be given to the statement.’”
Id. at ¶ 21 (bracketed words in the court’s opinion). On appeal,
both the defendant and the State agreed that the instruction
was improper and that IPI Criminal 4th No. 3.14 should have
been given. As modied to apply to the facts of the case, that
instruction would have provided:
“Evidence has been received that the defendant
has been involved in an offense other than those
charged in the indictment. This evidence has been
received on the issue of the defendant’s conscious-
ness of guilt and may be considered by you only
for that limited purpose. It is for you to determine
whether the defendant was involved in that offense
and, if so, what weight should be given to this
evidence on the issue of consciousness of guilt.”
Reasoning that the instruction given to the jury was mis-
leading, the majority of the appellate court panel held that
the trial court’s failure to provide the appropriate limiting
instruction related to “consciousness of guilt,” permitted the
jurors to consider the statement of the defendant as evidence of
propensity to commit crimes. Because the defendant had not
properly preserved the issue for appeal, the majority applied
plain error review and concluded that the second prong of the
plain error doctrine “denied the defendant a substantial right
and undermined the integrity of the judicial process.” Id. at
¶ 30. It therefore reversed the defendant’s convictions and
remanded the case to the circuit court.
The dissenting justice agreed that the instruction given the
jury was erroneous and that a modied IPI 3.14 instruction
should have been given. But it contended that the defendant
“cannot meet either prong of the plain-error test, since the
evidence against him was not closely balanced and the error
did not undermine the fundamental fairness of his trial,” and
therefore the second prong of the plain-error exception to the
forfeiture doctrine should not have been applied. Id. at ¶ 35.
The takeaway from Johnson: Setting aside whether the
majority correctly applied the second prong of the plain-error
doctrine, as Potts teaches and as stated above, care must be
taken to ensure that jurors be properly informed of the correct
application of other-offense and other-conduct evidence.
PeoPle v. hayDen: hearSay iSSue related to admiSSion of victim
StatementS where offenSeS were improperly not Severed
In People v. Hayden, 2018 IL App (4th) 160013, a jury found
the defendant guilty of two counts of predatory criminal sexual
assault of a child based on counts that alleged separate offenses
at different times against two different young girls. Both the
majority panel and the dissenting judge agreed that the trial
court erred in not granting the defendant’s motion to sever the
two cases based on the misjoinder of charges. The majority and
the dissent disagreed, however, on whether the failure to sever
the charges resulted in prejudice to the defendant.
The majority held that the failure to grant a severance
constituted reversible error because each victim’s allegations
were allowed to be corroborated by hearsay statements made
about each offense by each victim—statements admitted under
section 115-10 of the Code of Criminal Procedure of 1963.
The majority acknowledged that section 115-7.3 of the Code
allows evidence of similar offenses as propensity evidence,
but reasoned that section 115-10, which allows corroborating
hearsay evidence to bolster the testimony of the victim of an
offense, does not allow such hearsay evidence to bolster the
testimony of a propensity witness. Because such hearsay evi-
dence by both victims was allowed to be admitted in this case,
the majority held the defendant was prejudiced and reversed
the convictions and remanded the case for further proceedings.
The lengthy dissent disagreed with the majority’s “restrictive
interpretation” of section 115-10, and would have found that,
since the defendant suffered no prejudice, the denial of the
defendant’s motion for severance constituted harmless error.
The takeaway from Hayden, in the absence of a different
interpretation of section 115-10 or an amendment of that
statute by the legislature, is that joinder of separate offenses is
COMMENTARY CONTINUED
81ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
not proper on the basis that section 115-10 hearsay principles
apply for both joined and severed charges.
principleS related to the admiSSion of other-crime evidence
under ire 404(b) and under other StatuteS
Note that, in criminal cases, because of the combination
of common law and statutory provisions, a review solely of
the language of IRE 404(b) does not fully disclose that there
are circumstances that allow (and sometimes mandate) proof of
other crimes. The following evidence is specically admissible
(a) under the rule (bolstered by common law), or (b) separately
admissible pursuant to the provisions of various statutes:
(1) As the rule makes clear (and as conrmed
by the quote from the Dabbs decision provided
supra), other-crimes evidence that is not presented
to prove propensity, such as evidence presented
“for other [non-character] purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident,” is admissible.
(2) Statutes, such as sections 115-7.3 and 115-7.4
of the Code of Criminal Procedure of 1963, allow
admissibility of specic instances of conduct to
prove propensity.
(3) A statute, such as section 115-20 of the Code of
Criminal Procedure of 1963, allows admissibility
of evidence of specied prior convictions in pros-
ecutions for specied offenses to prove propensity.
(4) Statutes that require proof of a prior conviction
for specied offenses as an element for proving a
higher class of offense require that the conviction
be disclosed to the trier of fact. (See, e.g., People
v. Zimmerman, 239 Ill. 2d 491 (2010) (evidence of
a prior juvenile adjudication for an act that would
have been a felony if committed by an adult was
necessary to prove the element in prosecution for
the offense of aggravated use of a rearm); People
v. Davis, 405 Ill. App. 3d 585 (2010) (evidence of
a prior conviction for one of the offenses specied
by statute necessary to prove element in prosecu-
tion for offense of armed habitual criminal);
(5) A statute that provides for evidence of the com-
mission of a crime (See People v. Murray, 2019
IL 123389, holding that section 10 of the Illinois
Streetgang Terrorism Omnibus Prevention Act (740
ILCS 147/10) requires the State to provide prima
facie evidence to prove a street gang’s identity,
which includes evidence of “2 or more gang-re-
lated criminal offenses committed in whole or
in part within this State” and proof that “at least
one offense involved the solicitation to commit,
attempt to commit, or commission of any offense
dened as a felony or forcible felony under the
Criminal Code of 1961 or the Criminal Code of
2012”).
application of ordinary principleS of relevancy
In addition to what is stated in items (1) to (5) above, there is
a line of cases that allow admissibility of other crimes evidence
under ordinary relevancy principles, without invoking the
provisions of a rule such as IRE 404(b). Some of these cases
distinguish between whether the evidence of the prior offense
is extrinsic or intrinsic to the charged offense. If the evidence of
a prior offense is deemed to be extrinsic to the offense that is
the subject of the trial, it may not be admitted to demonstrate
the defendant’s propensity to commit the charged offense, but
it may be admitted if it is relevant to establish some other mate-
rial question, such as the common-law exceptions allowed
under IRE 404(b). If, however, the evidence of a prior offense
involves intrinsic acts (i.e., evidence concerning a necessary
preliminary to the offense that is the subject of the trial or a part
of the course of conduct leading up to the offense charged—
frequently referred to as “part of a continuing narrative”—then
the evidence is admissible under ordinary relevancy principles.
deciSionS on ordinary principleS of relevancy
Examples of a supreme court case and several appellate
court cases that address ordinary relevancy principles include:
• People v. Adkins, 239 Ill. 2d 1 (2010) (explaining
derivation of the “continuing-narrative exception,”
quoting People v. Marose, 10 Ill. 2d 340, 343
(1957) that evidence of other-crime “acts are all
a part of the continuing narrative which concern
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82RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
the circumstances attending the entire transaction
and they do not concern separate, distinct and
disconnected crimes,” and holding that evidence
of the defendant’s commission of a burglary in the
same building in which he burglarized another
apartment, where he killed a woman, constituted
a continuing narrative of the charged murder);
• People v. Manuel, 294 Ill. App. 3d 113 (1997)
(evidence of prior drug sales by the defendant to
the same police informant involved in the sale
of drugs in the case on trial did not constitute
other-crimes evidence unrelated to the charged
offense, because the previous drug sales were
precursors to the offense that was the subject of
the trial and provided context);
• People v. Morris, 2013 IL App (1st) 111251,
¶¶ 109-113 (citing Manuel in holding that defen-
dant’s earlier threats against two other men were
relevant in his prosecution for murdering the vic-
tim because the threats constituted a “continuing
course of conduct” that led to the victim’s murder,
and demonstrated the “defendant’s increased agi-
tation and escalating hostility, the focus of which
was [the victim’s] refusal of defendant’s demand to
leave the house”);
• People v. Rutledge, 409 Ill. App. 3d 22 (2011)
(evidence of the intoxicated defendant’s striking
a woman who refused his sexual advances while
seated in a parked car, before he struck an off-duty
police ofcer to whom the woman ran, was “inex-
tricably intertwined” with the offense against the
ofcer, for it showed that the defendant was drunk
and angry and thus tended to explain the events
leading to the altercation with the ofcer);
• People v. Hale, 2012 IL App (1st) 103537 (shooting
of a woman shortly before a shooting that resulted
in death constituted part of a continuing narrative
that justied admission of the earlier offense in
the prosecution of the later rst-degree murder
offense);
• People v. Morales, 2011 IL App (1st) 101911
(evidence of persons being beaten in a factory
parking lot by codefendants of the defendant,
19 days before the murder and robbery offenses
that were the subject of the case on trial and that
occurred in the same parking lot, was probative
of the defendant’s involvement in the offenses
on trial, gave rise to a reasonable inference that
the two events were connected, allowed the
trial court discretion to conclude that the earlier
offenses were a precursor to the offenses on trial,
and provided an explanation of an aspect of the
crime not otherwise understandable—whether or
not the defendant had been present for the earlier
offenses);
• People v. Feliciano, 2020 IL App (1st) 171142
(where the 94-year-old victim was discovered
violently beaten and identied defendant as the
person who beat him, relying on the supreme
court’s holding in People v. Illgen, 145 Ill. 2d 353
(1991), in holding that the trial court properly
admitted testimony of a witness who earlier saw
bruises on the victim and was told by the victim
that defendant “had been beating him and taking
his money” (id. ¶ 113), as well as the testimony of
the woman’s husband who confronted defendant
about what the victim had said, which defendant
did not deny, that evidence having served to dis-
pute evidence presented by defendant).
In People v. Rogers, 2014 IL App (4th) 121088, the
defendant was convicted of aggravated battery based on his
punching a 15-year-old boy and breaking his nose. During the
jury trial, the State presented evidence that, after the offense,
the defendant placed the victim’s hand in a vice, threatening to
cut off his arm, and threatened to kill the victim and a 14-year-
old witness. In approving the admission of this other-crimes
evidence, the appellate court reasoned that the evidence was
“admitted to show why the boys were afraid of defendant and
did not report the incident” and “[d]efendant’s threat to kill the
boys was an attempt to intimidate witnesses and avoid police
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83ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
COMMENTARY CONTINUED
detection. Such conduct indicates consciousness of guilt. See
People v. Gamboney, 402 Ill. 74, 80, 83 N.E.2d 321, 325 (1948)
(an attempt to suppress evidence or obstruct an investigation is
relevant as evincing consciousness of guilt).” Rogers, at ¶ 21.
People v. Carter, 2016 IL App (3d) 140196, does not refer to
IRE 404(b), but is noteworthy for the divergent views expressed
by the three justices concerning evidence of the other-crime
of attempted escape—evidence admitted in the defendant’s
prosecution for the offense of aggravated battery with a rearm.
In afrming the conviction, the authoring justice premised his
approval of the admission of the evidence of the defendant’s
plans to escape from jail while awaiting trial on the longstand-
ing proposition of Illinois law that evidence of the crime of
attempted escape is admissible for the purpose of showing a
defendant’s consciousness of guilt. Carter, at ¶ 32. The special
concurring justice agreed with that result based on the strength
of precedence, but expressed grave reservations about the logic
and inconsistencies connected with such evidence. Finally, the
dissenting justice contended that “the excessive other-crimes
evidence constitutes reversible error arising out of a trial within
a trial.” Id. at ¶ 63.
For examples of decisions where “continuing narrative” was
rejected as a basis for the admission of other-crime evidence,
see People v, Jacobs, 2016 IL App (1st) 133881 (holding that,
where defendant was charged with possession of a stolen car
and not charged with stealing the car or burglarizing the home
from which the car and jewelry were stolen, another person
having been charged with those offenses, those offenses were
distinct and undertaken for different reasons at a different place
at a separate time, and evidence that tended to show that defen-
dant had committed them therefore was improperly admitted
as evidence of a continuing narrative); and People v. McGee,
2015 IL App (1st) 122000 (holding that altercation between
defendant and victim’s husband did not constitute a continuing
narrative of defendant’s alleged stalking offense toward the
victim “as the altercation was a ‘distinct’ event ‘undertaken for
different reasons’ at a different time” (id. at ¶ 30)).
PeoPle v. Pikes: explication of ordinary principleS of relevancy
In People v. Pikes, 2013 IL 115171, the trial court admitted
evidence that one Donegan, a codefendant and fellow gang
member of the defendant, had red shots at a member of a rival
gang who rode a scooter through his gang’s territory. Donegan
in turn was struck by a car driven by another rival gang member
who had followed the driver of the scooter. The defendant was
not involved in these incidents, but the evidence summarized
above was presented to the jury, as well as evidence that the
next day Donegan and the defendant, seeking revenge, drove
through the rival gang’s territory, and Donegan killed a member
of the rival gang in a drive-by shooting. On appeal from the
defendant’s conviction for rst degree murder, the appellate
court reversed the conviction based on its conclusion that
evidence of the “scooter shooting,” in which the defendant was
a non-participant, was improperly admitted as “other crime”
evidence, because there was no proof that the defendant was
involved in or participated in that offense.
On further review, the Illinois Supreme Court reasoned
that, where an uncharged crime or bad act is not committed
by the defendant, there is no danger that the jury will convict
the defendant because it believes he or she has a propensity to
commit crimes. The court held that, because the defendant was
not involved in the scooter shooting incident, evidence con-
cerning that incident was indeed not “other crime” evidence
under IRE 404(b), that there thus was no need to show that the
defendant was a participant in the earlier offense for that evi-
dence to be admitted, as is the case when Rule 404(b) applies,
but that the evidence of the scooter shooting was admissible
as relevant to show the defendant’s motive for the drive-by
shooting that resulted in the death of the rival gang member.
The court summarized its holding as follows:
“It is evident, therefore, that the concerns under-
lying the admission of other-crimes evidence are
not present when the uncharged crime or bad act
was not committed by the defendant. In such a
case, there is no danger that the jury will convict
the defendant because it believes he or she has a
propensity to commit crimes. Thus, the threshold
requirement to show that the defendant, and not
someone else, committed the crime does not
apply. The evidence was clear that defendant was
not involved in the scooter shooting. Thus, the
84RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
COMMENTARY CONTINUED
appellate court erred in holding that the evidence
of that shooting was inadmissible on the ground
that the State did not show that defendant commit-
ted or participated in that shooting. We therefore
conclude that the evidence of the scooter shooting
was not other-crimes evidence and the appellate
court erred in analyzing it as such.” People v.
Pikes, 2013 IL 115171, ¶ 16.
Regarding the admissibility of the “scooter shooting,” the
supreme court commented on the line of cases summarized
above and, in reversing the judgment of the appellate court on
the basis of its conclusion that the evidence was relevant and
thus admissible, said this:
“Rather than sow confusion by analyzing the
scooter shooting evidence under terms such
as ‘extrinsic’ or ‘intrinsic’ or as ‘inextricably
intertwined’ or as a ‘continuing narrative,’ we
conclude that the admissibility of evidence of the
scooter shooting incident in this case should be
judged under ordinary principles of relevance.” Id.
at ¶ 20.
appellate court deciSionS applying Pikes
The appellate court’s decision in People v. Talbert, 2018 IL
App (1st) 160157, applied Pikes and considerations of rele-
vancy in upholding the admission of prior bad acts directed at
the victims by a person who was not the defendant, but who
was linked by evidence as directing the defendant to commit
the acts that led to rst degree murder, attempted murder, and
the aggravated discharge of a rearm. Applying considerations
of relevancy, the court held that it was unnecessary to establish
the defendant’s knowledge of the bad acts of his cousin (drug
sales, an arson threat, and a subsequent attempt arson), and
that, though motive is not an element of the offense of murder,
the admitted evidence was relevant to establish the motive
alleged by the State. Moreover, the court held, “[t]he evidence
had great probative value given that it explained an otherwise
inexplicable shooting.” Talbert, at ¶ 45.
In People v. Daniels, 2016 IL App (4th) 140131, the appel-
late court rst rejected the arguments of the parties that were
based on the evidence of acts performed without the involve-
ment of the defendant constituting “other-crimes” evidence
under IRE 404(b)—i.e., crimes that the defendant committed
or participated in, and which therefore raise questions about
propensity. Heavily relying on Pikes and citing other appellate
court decisions, the court reasoned instead that the evidence of
an earlier dispute between two rap groups about a microphone
and evidence of an earlier altercation, neither directly involv-
ing the defendant, were admissible as a continuing narrative
that helped explain the events involved in the charged offenses.
People v. Clark, 2018 IL App (2d) 150608, illustrates Pikes’
application of ordinary principles of relevance. In Clark, the
sole issue on appeal was whether a real gun was used in the
offense that resulted in the charge of armed robbery with a
rearm. The defendant’s co-offender, who had held the gun
during the robbery and had pleaded guilty, testied as a State’s
witness that the gun he held was real. The State then introduced
evidence of the co-offender’s conviction for armed robbery
committed with a real gun before the date of the offense on
trial. In response to the defendant’s challenge to the admission
of that conviction, the appellate court rst reasoned that the
prior conviction of the co-offender was not to be analyzed as
“other crimes” evidence under IRE 404(b), because he was
not the defendant at trial. Citing Pikes, the court held that
“its admissibility is to be judged under ordinary principles of
relevance.” Clark, at ¶ 25. The court then noted that neither
the trial court nor the State had introduced the armed-robbery
conviction to bolster the co-offender’s credibility; rather, “the
conviction was limited to the issue of whether the gun was
real.” Id. at ¶ 29. Concluding that “the prejudicial impact of the
conviction did not substantially outweigh its probative value,”
the appellate court held that “the trial court did not abuse its
discretion in admitting the armed-robbery conviction to show
that the gun used in this case was real.” Id. at ¶ 31.
Seventh circuit’S acceptance of mere principleS of relevancy
It should be noted that the Seventh Circuit Court of Appeals
is in accord with the supreme court’s approach to the type of
evidence the court found admissible in Pikes, and with its quotes
provided above from that case. In United States v. Gorman,
613 F.3d 711 (7th Cir. 2010), the Seventh Circuit questioned
application of the “inextricably intertwined” doctrine, noting
85ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
that the circuit “has recently cast doubt on the continuing via-
bility of the inextricable intertwinement doctrine, nding that
‘[b]ecause almost all evidence admitted under this doctrine is
also admissible under Rule 404(b), there is often ‘no need to
spread the fog of ‘inextricably intertwined’ over [it].’ Conner,
583 F.3d at 1019 (quoting United States v. Taylor, 522 F.3d 731,
734 (7th Cir. 2008), cert. denied, [555] U.S. [878], 129 S. Ct.
190, 172 L. Ed. 2d 135 (2008)).” Gorman, 613 F.3d at 718-19.
Indeed, in its subsequent decision in United States v. Gomez,
763 F.3d 845 (7th Cir. 2014) the Seventh Circuit, sitting en banc,
abandoned its prior approach to analyzing other-act evidence
in favor of applying mere relevancy principles. For a discussion
of the Gomez decision, see the Author’s Commentary on Fed.
R. Evid. 404(b), supra.
Pikes’S application to offenSeS participated in by defendant
It should further be noted that, though Pikes addressed a
situation where the defendant was not a participant in the
earlier offense, its message that admission of evidence of an
earlier offense “should be judged under ordinary principles of
relevance,” applies equally to an earlier offense in which the
defendant was an active participant. An illustration of that is the
post-Pikes case of People v. Hensley, 2014 IL App (1st) 120802,
where the appellate court approved the admission of evidence
that, shortly before the rst-degree murder and other offenses
for which he was tried, the defendant red shots and pointed
a revolver at and threatened others—on the basis that the
defendant’s prior activity constituted a “continuing narrative”
concerning the “course of conduct” that led to the murder and
other offenses that followed. The Hensley court summarized
the authority that led to its holding as follows:
“Our supreme court ‘has recognized that evidence
of other crimes may be admitted if it is part of
the ‘continuing narrative’ of the charged crime.’
People v. Pikes, 2013 IL 115171, ¶ 20 (quoting
People v. Adkins, 239 Ill. 2d 1, 33 (2010)). In such
cases, ordinary relevancy principles apply and
the rule related to other crimes is not implicated.
[People v.] Rutledge, 409 Ill. App. 3d [22] at 25
[(2011)]. This court has described evidence prop-
erly admitted as a continuing narrative as where
intrinsic acts are ‘a necessary preliminary to the
current offense,’ and where ‘the prior crime is part
of the ‘course of conduct’ leading up to the crime
charged.’ People v. Morales, 2012 IL App (1st)
101911, ¶¶ 24-25 (quoting People v. Manuel, 294
Ill. App. 3d 113, 124 (1997)). Uncharged crimes
admitted as a continuing narrative ‘do not consti-
tute separate, distinct, and disconnected crimes.’
Pikes, 2013 IL 115171, ¶ 20. Conversely, distinct
crimes made for different reasons at different times
and places will not be admitted as a continuing
narrative. Adkins, 239 Ill. 2d at 33.” Hensley, at
¶ 51.
Note that the decision in People v. Lopez, 2014 IL App (1st)
102938-B (appeal denied, No. 118017 (9/24/14)), contrasts
with the cases discussed above, particularly the appellate
court decision in People v. Morales, 2012 IL App (1st) 101911,
and the supreme court decision in Pikes. During trial in the
Lopez case, as in the Morales case which arose out of the same
events, the State had been permitted to present evidence of
beatings that occurred in a factory parking lot less than three
weeks before the beating in the same parking lot that led to the
killing of the victim and the murder charge. At both the earlier
offenses and the offense that led to the murder charge, code-
fendants of Morales and Lopez were involved, but, although
there was evidence that Lopez was near the parking lot before
and after the prior offenses, there was no evidence that he
participated in those offenses. There was evidence, however,
that he was present for and participated with Morales and other
codefendants in the events that resulted in the murder.
In its original review of the case, the Lopez court reversed
the defendant’s conviction for rst degree murder based on its
rejection of Morales and its reliance on the Pikes appellate court
decision. Thereafter, the supreme court directed the appellate
court to vacate its judgment and reconsider its decision in
light of the supreme court’s Pikes decision. On remand from
the supreme court, the Lopez court again reversed the murder
conviction based upon its holding that evidence of the earlier
offenses—the “other crime” evidence—had been admitted
improperly. The court distinguished Morales, where there was
COMMENTARY CONTINUED
86RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
some evidence that Morales was present for the earlier offenses
(evidence provided by a witness who later in his testimony
stated that he was unsure whether Morales was present), even
though the Morales court had held that the evidence of the prior
offenses was admissible whether or not Morales was present or
participated in those offenses. And it distinguished the supreme
court’s Pikes decision based on the fact that, in that case, there
was evidence that the defendant and the codefendant were
seeking retaliation for the earlier event, whereas in the case at
bar, the court held, there was no relevance established between
the earlier offenses and the offense for which Lopez was tried.
exampleS of the application of the rule’S common-law exceptionS
In People v. Brown-Engel, 2018 IL App (3d) 160368,
an appeal from a bench-trial conviction for the offense of
attempted aggravated criminal sexual abuse, the appellate
court concluded that, because the charged offense was not an
enumerated offense in section 115-7.3 of the Code of Criminal
Procedure and because that offense is distinct from the offense
formerly referred to as indecent liberties with a child, it was
improper to admit evidence of prior bad acts involving the
defendant with the 13-year-old female victim for propensity
purposes. But noting that “evidence admissible for one pur-
pose is not affected by inadmissibility for another” (id. at ¶ 20),
the court held that “the evidence was admissible to establish
defendant’s intent and absence of an innocent state of mind
pursuant to Illinois Rule of Evidence 404.” Id. In addition to
providing the rationale for the admission of such evidence, the
court held that the other bad acts testimony of the victim “ts
squarely within the recognized exceptions [of Rule 404(b)],
which allow such evidence to show defendant’s intent or to
show that the act in question was not performed inadvertently,
accidentally, involuntarily, or without guilty knowledge.” Id. at
¶ 22.
In People v. Larke, 2018 IL App (3d) 160253, the appellate
court held that it was proper, in this jury trial involving posses-
sion of cocaine with intent to deliver, for the trial court to admit
evidence of the defendant’ prior conviction for possession of
cannabis with intent to deliver. In reliance on the appellate
court’s prior decision in People v. Watkins, 2015 IL App (3d)
120882, the court held that, though the substances possessed
by the defendant differed, the prior offense was relevant, not
for propensity purposes, but to prove the defendant’s intent to
deliver in this case. See Watkins, at ¶¶ 45-47, for its citation to
a number of decisions justifying its approval of the admission of
the prior offense for the purpose of proving intent.
For an example of a proper application of proof of oth-
er-crime evidence to prove guilt for the offense that was the
subject of trial, see People v. Simmons, 2016 IL App (1st)
131300 (holding that evidence that defendant shot a woman
(other than the deceased victim in the case at bar) in the
hand more than a month before the murder of the victim was
properly admitted into evidence, because the bullet in the
woman’s hand matched the bullet in the brain of the deceased
victim, thus serving to identify the defendant as the offender
in the murder case; proof beyond a reasonable doubt was not
required to prove the earlier offense, and deciencies in the
woman’s testimony went to the weight of her testimony, not its
admissibility).
For a case afrming a conviction for rst degree murder
and approving the admission of prior acts of domestic violence
based solely on the basis of common-law principles (i.e., not to
show propensity, but for the purpose of proving motive, intent,
identity, lack of mistake, or modus operandi), see People v.
Null, 2013 IL App (2d) 110189. See also People v. Jaynes, 2014
IL App (5th) 120048, ¶¶ 54-57 (in prosecution for possession
of child pornography, evidence of stories of underage children
having sex, placed on the defendant’s computer hard drive
after his wife and stepchildren had access to the computer, was
admissible to lessen the probability that they had placed the
pornographic images on his computer or on CDs placed in his
house, and because it was relevant to show lack of mistake,
lack of accident, and intent); People v. Sims, 2019 IL App (3d)
170417 (with one justice dissenting, approving evidence of the
defendant’s earlier possession of a .45-caliber handgun in the
prosecution for the possession of a .38-caliber handgun by a
felon, where the latter handgun was found in the defendant’s
car and not on his person and the prior possession was admitted
for the limited purpose of the defendant’s intent, knowledge,
lack of mistake, and lack of accident).
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87ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
In People v. Mitchem, 2019 IL App (1st) 162257, in a pros-
ecution for aggravated kidnapping and aggravated vehicular
hijacking, the appellate court held that evidence of the prior
successful kidnapping for ransom, three months earlier, by the
defendant and his codefendant against the same victim (previ-
ously undisclosed because the victim was a drug dealer) had
been properly admitted for the purpose of establishing their
motive for kidnapping the victim once again.
In People v. Cerda, 2021 IL App (1st) 171433, ¶¶ 95-123, a
prosecution for a the rst-degree murder of three men involved
in the purchase and sale of drugs, where extensive evidence of
other crimes concerning the defendant’s involvement in drug
offenses was admitted, the appellate court provided a com-
prehensive analysis in holding that the evidence was properly
admitted because “the other-crimes evidence did not transgress
the general prohibition against the admission of other-crimes
evidence where it fell within the exceptions for conspiracy,
common design or plan, motive, identity, intent, and course of
the police investigation.” Id. at ¶ 122.
Split in the appellate court about the admiSSibility of other-
crimeS evidence admitted to prove intent where intent iS not
expreSSly put at iSSue
In People v. Davis, 2019 IL App (1st) 160408, a prosecu-
tion for the offense of possession of more than 900 grams of
cocaine, police recovered a 989-gram brick of cocaine and
three handguns in the secret compartment of a car in which
the defendant was a passenger. The trial court denied the
defendant’s motion to suppress the evidence and additionally
granted the State’s motion to admit the evidence concerning
the three handguns. On appeal, the defendant argued that
the evidence of the handguns should not have been admitted
because “his intent had never been at issue, rendering the
admission of the gun evidence as cumulative and prejudicial.”
Id. at ¶ 57. Reasoning in part that “the other-crimes evidence—
possession of rearms—relates to the issue of Davis’s intent to
distribute the cocaine” (id. at ¶ 64), and holding that “the State
can introduce admissible other-crime evidence to prove intent
even where the defendant does not put intent directly in issue”
(id. at ¶ 63), the appellate court disagreed.
In afrming the admission of the gun evidence, the appel-
late court noted it “confront[ed] a split in authority about the
admissibility of other-crimes evidence to help prove intent
where intent is not expressly at issue.” Id. at ¶ 59.
The court noted two decisions where the admission of
other-crimes evidence to prove intent had been held to be
improper: the pre-codication decision in People v. Knight,
309 Ill. App. 3d 224 (2d Dist. 1999) (in this conviction for
domestic battery, reasoning that the “defendant’s state of mind
was not in controversy” (id. at 227), because he had testied
that he had not beaten the victim, and therefore holding that
the evidence of the defendant’s threat six weeks after the beat-
ing was improperly admitted), and People v. Clark, 2015 IL App
(1st) 131678 (although nding harmless error because of the
overwhelming evidence of guilt, holding it was not probative of
either intent or identity for the trial court to admit evidence that
the defendant, who was charged with theft of a bicycle, had
stolen a bicycle in the same area four years before). In support
of the propriety for admitting evidence to prove intent, Davis
cited People v. Cavazos, 2015 IL App (2d) 120444 (rejecting
defendant’s contention that motive and intent were not in issue,
in holding that proof of motive and intent justied admission of
defendant’s same-day attempt to kill a rival gang member after
his involvement in a separate successful killing of a rival gang
member).
In rejecting the holdings in Knight and Clark and agreeing
with the holding in Cazavos, the Davis court relied heavily on
the supreme court’s decision in People v. Heard, 187 Ill. 2d
36 (1999). In that case, defendant was convicted by a jury of
the murder by gunre of three persons, including defendant’s
former girlfriend and her current boyfriend. During trial, the
court admitted the State’s evidence that defendant had stolen
his former girlfriend’s clothes and that he beat her after offering
to return the clothes. The court also admitted evidence that on
another occasion, while his former girlfriend and her current
boyfriend were in a rental car, defendant twice rammed the
rear of the car with his truck before they drove to a police
station to le a report. Evidence also was admitted that on
another occasion defendant rammed the car occupied by his
ex-girlfriend and her current boyfriend and, when the current
COMMENTARY CONTINUED
88RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
boyfriend exited the car to examine the damage, defendant
red shots at him.
On direct appeal to the supreme court in Heard a death
penalty case, defendant contended that the other-crimes
evidence should not have been admitted because motive and
intent were not at issue in this case for the killer “intended to
kill the victims, so intent was not genuinely in issue.” Heard,
at 60. He also contended that “because he denied involvement
in the murders, the identity of the perpetrator, not the motive
and intent of the perpetrator, was the issue in this case.” Id. The
supreme court was not persuaded. It held that “the prosecution
had to prove that defendant was the shooter. The prosecution
introduced the other-crimes evidence to prove defendant’s
motive and intent to kill the victims, thus providing further proof
of defendant’s identity as the shooter.” Id. at 59 (emphasis in
original). The supreme court thus held that “the other-crimes
evidence was admissible to prove defendant’s motive and
intent to commit the murders. The other-crimes evidence
revealed defendant’s continuing hostility and animosity toward
[his former girlfriend and her current boyfriend].” Id.
In Davis, the appellate court concluded that it “deem[ed]
the Cavazos court as the better reading of Heard: evidence
of other crimes can be used to prove intent, even if intent is
not put expressly at issue, because the burden remains on the
prosecution to prove intent beyond a reasonable doubt regard-
less of whether the defendant disputes it.” Davis, at ¶ 62. The
court reasoned that if it were to embrace the reasoning of the
other cases, “a defendant could deprive the State of its right
to introduce relevant, competent evidence simply by staying
silent about certain elements of the offense for which he or she
has been charged.” Id. at ¶ 63.
The takeaway from the above discussion: The split of author-
ity described in this commentary exists only in the First and
Second Districts of the appellate court—Davis and Clark in the
First District, and Cavazos and Knight in the Second District.
Under normal circumstances, that means that trial judges in
those districts may choose the holding in the decision they
deem to be appropriate. A holding of the supreme court, such
as that in Heard, however, always trumps a contrary appellate
court holding and should be followed, absent another clarify-
ing opinion from the supreme court.
deciSionS on admiSSion of evidence of numerouS other-crime
offenSeS
In a number of cases, defendants have contended on appeal
that the sheer number of other-crime offenses admitted under
section 115-7.3 in sexual offense prosecutions was excessive
and that the aggregate prejudicial effect outweighed the proba-
tive value of such evidence. An early example of a case, where
that effort succeeded, is People v. Cardamone, 381 Ill. App. 3d
462 (2008), where, in reversing the defendant’s convictions for
nine counts of aggravated criminal sexual abuse against seven
girls, in a prosecution where there had been 14 complainants
and an additional witness who also testied to sexual abuse,
the appellate court estimated that there had been testimony
related to 158 to 257 uncharged incidents.
In People v. Perez, 2012 IL App (2d) 100865, however, in
referring to Cardamone as an “extreme case” and to the defer-
ence given to the trial court’s rulings on admission of evidence,
the appellate court afrmed the defendant’s conviction for
aggravated criminal sexual abuse, in a case where numerous
uncharged offenses testied to by the complainant and another
young girl had been admitted into evidence. The court noted
that “any undue prejudice of ‘more thorough other-crimes
evidence’ admitted under section 115-7.3 will be ‘less’ unduly
prejudicial than in a common-law other-crimes case.” Perez,
at ¶ 49. Where the other-crime-offenses are offered by the
victim of charged offenses as was the case in Perez, the court
also stressed the need to introduce other-crimes evidence for
the purpose of furnishing necessary context for the charged
offenses. Id. at ¶¶ 50-51.
In People v. Salem, 2016 IL App (3d) 120390, the appellate
court held that “the trial court abused its discretion by allowing
the State to introduce unlimited other crimes evidence.” Salem,
at ¶ 59. In that case, involving a prosecution for four separate
counts of unlawful possession of open vehicle titles, “the jury
received 17 exhibits to examine and consider concerning
the uncharged crimes related to defendant’s alleged knowing
possession of multiple stolen vehicles parked in his driveway.”
Id. at ¶ 59 (emphasis in original).
COMMENTARY CONTINUED
89ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 404
propriety of admiSSion of evidence alleged to contain too many
or unneceSSary detailS related to other-crime offenSeS
In People v. Bates, 2018 IL App (4th) 160255, ¶¶ 78-90,
citing IRE 404(b) and section 115-7.3 of the Code of Criminal
Procedure, as well as principles provided by the Second
District pre-codication decision in People v. Walston, 386
Ill. App. 3d 598 (2008), the appellate court observed that
the State had introduced “comprehensive evidence” of the
defendant’s alleged attack on a victim of an offense similar
to the aggravated criminal sexual offense in the case at bar.
Reasoning that such evidence is highly probative because the
jury is able to use the evidence for propensity purposes as
allowed by section 115-7.3, the court determined that, though
such evidence is harmful to a defendant’s case, it is not unduly
prejudicial. The court rejected the defendant’s argument that
the State presented the other-crime case with “unnecessary
detail” and held that the trial court’s balancing determination
under IRE 403 was not an abuse of discretion. Finally, the court
rejected the defendant’s argument that an improper “mini-trial”
had occurred, reasoning that it was necessary to establish the
defendant’s involvement in the attack of the other-crime victim.
opening the door to otherwiSe inadmiSSible other-crime
evidence
People v. Hinthorn, 2019 IL App (4th) 160818, ¶¶ 68-86,
demonstrates that, even where other-crime evidence is not
deemed admissible, such evidence may be made admissible
based on other legal theories. In that case, involving offenses
of predatory criminal sexual assault and criminal sexual assault
on the defendant’s daughter, evidence of the defendant’s prior
rapes of his wife had been ruled inadmissible. Nevertheless, the
appellate court afrmed the admission of that evidence based
on curative admissibility, which provides that “if the defendant
on cross-examination opens the door to a particular subject,
the State on redirect examination may question the witness to
clarify or explain the subject brought out during, or remove
or correct any unfavorable inferences left by, the defendant’s
cross-examination, even if this elicits evidence that would not
be proper or admissible.” Hinthorn, at ¶ 71. In Hinthorn, the
appellate court also addressed the doctrine of completeness,
which it held was inapplicable in this case.
Davis and rosaDo: need to diScloSe to jury defendant’S
acquittal for crimeS admiSSible under ire 404(b)
In People v. Ward, 2011 IL 108690, the supreme court held
that the trial court’s ruling barring the evidence of the jury
acquittal of the defendant for a prior sex offense, admitted
as propensity evidence under section 115-7.3 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/115-7.3), was
improper. And in People v. Rosado, 2017 IL App (1st) 143741,
the appellate court held that the trial court abused its discretion
in allowing the admission of a subsequent offense of deliv-
ery of a controlled substance, because such evidence could
not bolster identication of the defendant as the person who
delivered a controlled substance in the earlier charged offense.
As relevant here, however, the court invoked Ward in holding
that the trial court erred in not allowing evidence of the earlier
acquittal of the offense that had been admitted into evidence
for the purpose of establishing identity.
application in civil caSeS
It is important to note that the general prohibition against
admitting character evidence for the purpose of proving
propensity under both IRE 404(a) and IRE 404(b), although
generally applied in criminal cases, applies also in civil cases.
See, for example, Powell v. Dean Foods, Co., 2013 IL App (1st)
082513-B, which, citing other cases, reversed and remanded
judgments for the plaintiffs, where evidence of the defen-
dant-truck driver’s prior acts of speeding, a prior violation of
federal logging regulations, and a prior ne were held to have
been improperly admitted and to have served “no purpose
other than to allow the inference that defendants acted badly at
the time of the accident because they had done so prior to the
accident.” Powell, at ¶ 102.
Author’s Commentary on Ill. R. Evid. 404(c)
IRE 404(c) places on the prosecution the responsibility for
pretrial disclosure of evidence of other crimes, wrongs, or acts
it intends to admit at trial. It is based on the requirements of
subdivisions in each of the statutes in the Criminal Code of
Procedure specied in IRE 404(b)—specically, section 115-
7.3(d), section 115-7.4(c), and section 115-20(d).
COMMENTARY CONTINUED
90RULE 404 ARTICLE IV. RELEVANCY AND ITS LIMITS
There is no FRE 404(c). But effective December 1, 2020, an
amendment to the federal rules ended the previous requirement
that a defendant in a criminal case had the burden of requesting
the prosecution to provide reasonable notice of the prosecu-
tion’s intent to admit evidence of the type of crimes, wrongs,
or other acts permitted under FRE 404(b)(2). The amendment,
which created FRE 404(b)(3)(A), (B), and (C), places the burden
of notice about its intent to admit those other acts solely on
the prosecution. By virtue of that amendment, FRE 404(b) now
provides a notice requirement on the prosecution that is similar
to that provided in IRE 404(c).
application of ire 404(c)
In People v. Torres, 2015 IL App (1st) 120807, the defendant,
who was on trial for multiple offenses that included aggravated
criminal sexual assault, contended that in its motion in limine
the State had provided him an inadequate summary of the evi-
dence of two prior offenses against the victim that it intended
to present under IRE 404(b). He contended that the trial court
was thus prevented from properly analyzing the evidence
and that he was thus prevented from adequately opposing its
admission. Specically, the defendant asserted unfair surprise
by the amount of detail concerning at least one of the other
crimes testied to by the victim, and that he had not objected
because of the State’s inadequate factual summary. After quot-
ing both IRE 404(c) and section 115-7.4(c) (which, as indicated
above, is one of the statutes upon which IRE 404(c) is based),
and noting that there was no case in Illinois interpreting the
term “summary” in the phrase “a summary of the substance
of any testimony” (a phrase found in both the rule and the
statute), the appellate court reasoned that “a ‘summary’ need
not contain all that is required by an offer of proof; a lesser
amount of detail and particularity sufces.” Torres, at ¶ 53.
Noting that the State’s motion in limine to admit the evidence
“provided details as to time, place, the victim, and acts that
were committed” by the defendant related to the other crime,
the appellate court concluded that the trial court had properly
admitted the evidence.
COMMENTARY CONTINUED
91ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 405
Rule 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of
a person’s character or character trait is admissible, it
may be proved by testimony about the person’s repu-
tation or by testimony in the form of an opinion. On
cross-examination of the character witness, the court
may allow an inquiry into relevant specic instances of
the person’s conduct.
(b) By Specic Instances of Conduct. When a
person’s character or character trait is an essential ele-
ment of a charge, claim, or defense, the character or
trait may also be proved by relevant specic instances of
the person’s conduct.
Rule 405. Methods of Proving Character
(a) Reputation or Opinion. In all cases in which
evidence of character or a trait of character of a person
is admissible, proof may be made by testimony as to
reputation, or by testimony in the form of an opinion.
(b) Specic Instances of Conduct.
(1) In cases in which character or a trait of char-
acter of a person is an essential element of a charge,
claim, or defense, proof may also be made of specic
instances of that person’s conduct; and
(2) In criminal homicide or battery cases when
the accused raises the theory of self-defense and
there is conicting evidence as to whether the alleged
victim was the aggressor, proof may also be made of
specic instances of the alleged victim’s prior violent
conduct.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Committee Comment to Rule 405
Specic instances of a person’s conduct as proof of
a person’s character or trait of character are not generally
admissible as proof that the person acted in conformity
therewith. Specic instances of a person’s conduct are
admissible, however, under Rule 405(b)(1), as proof of a
person’s character or a trait of character only in those limited
cases (such as negligent entrustment, negligent hiring, and
certain defamation actions), when a person’s character or a
trait of character is an essential element of a charge, claim,
or defense. Specic instances of conduct are also admissible
under Rule 405(b)(2) in criminal homicide or battery cases
when the accused raises the theory of self-defense and there
is conicting evidence as to whether the alleged victim was
the aggressor.
92RULE 405 ARTICLE IV. RELEVANCY AND ITS LIMITS
Author’s Commentary on Ill. R. Evid. 405(a)
At the outset, note that IRE 405 addresses only the methods
for proving character, not the admissibility or inadmissibility of
character evidence, which are subjects addressed in IRE 404.
IRE 405(a) is identical to FRE 405(a) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for Illinois’ non-acceptance of the federal rule’s
second sentence regarding cross-examination on specic acts
of conduct. Under both the federal and the Illinois versions
of Rule 405(a), character evidence is admissible only by rep-
utation or opinion—not by proof of specic acts of conduct.
The federal rule, however, allows cross-examination on specic
acts of conduct. See Michelson v. United States, 335 U.S. 469,
479 (1948) (approving cross-examination on specic acts of
defendant’s conduct to counter defendant’s admitted character
evidence). In contrast to the federal rule, IRE 405(a) does not
allow cross-examination on specic acts of conduct—except as
permitted through direct and cross-examination by IRE 405(b)
(1) when character or a trait of character is an essential element
of a claim or defense, or by IRE 405(b)(2) through direct or
cross-examination about an alleged victim’s prior violent con-
duct, when self-defense is raised in homicide or battery cases.
Though it is consistent with FRE 405(a), the ability to prove
character by opinion evidence represents a substantive change
in Illinois law because, before the codied rule, Illinois—con-
sistent with common law—permitted character evidence only
by reputation testimony. (See the “Recommendations” section
of the Committee’s general commentary at the bottom of page
4 of this guide.)
Allowing opinion testimony to prove character raises an
interesting question: Does the ability to prove character by
opinion evidence allow for the admission of expert opinion
testimony? The decision in People v. Garner, discussed just
below, gives rise to that question.
PeoPle v. garner: doeS proof of character through “opinion”
teStimony under ire 405(a) allow for expert opinion evidence?
In People v. Garner, 2016 IL App (1st) 141583, a jury con-
victed defendant of the rst degree murder of her six-year-old
daughter by the administration of an overdose of a powerful
antidepressant. During trial, the State presented evidence
concerning defendant’s motive for killing her daughter and for
unsuccessfully attempting to commit suicide through a similar
overdose. The motive evidence was that her husband, whom
she suspected of having an affair, had just informed her by
telephone that he intended to seek a divorce.
To counter the motive evidence, defendant sought to
introduce testimony from a clinical psychologist that, based
on his interview of defendant, he was of the opinion that (1)
defendant “was not attempting to exaggerate or feign memory
impairment or amnesia regarding events immediately leading
up to her hospitalization and subsequent arrest” (to bolster
defendant’s testimony that she suffered amnesia and to counter
the State’s evidence from a nurse and two police ofcers who
testied that, while defendant was hospitalized, they had
talked to her about matters related to the charged offense); and
that (2) defendant “was not a needy or dependent individual
whose self-esteem or contentment with life was connected to
the strength of her relationship with her husband,” and that
it “would be unlikely that she would have been so depressed
with her husband’s indelities that she would try to kill herself
and her child.” Garner, at ¶ 6.
Holding that defendant was seeking to present inadmissi-
ble character evidence, the trial court had granted the State’s
motion in limine seeking the exclusion of the psychologist’s
testimony. Focusing initially on the psychologist’s evaluation of
defendant’s likelihood to commit murder based on her phone
conversation with her husband, the appellate court concluded
that the trial court correctly treated the psychologist’s testimony
as character evidence, because the defendant conceded on
appeal that the psychologist’s opinion was that the defendant
“lacked the personality traits to attempt suicide or murder in
the wake of her husband’s indelities.” Id. at ¶ 28 (emphasis
added by appellate court). The appellate court further held
that the trial court’s grant of the State’s motion in limine was
correct because, when the ruling was made, the law allowed
for character evidence to be admitted only through reputation
evidence. Before the case went to trial, however, Illinois’ codi-
ed evidence rules had been adopted, and the appellate court
noted that “Rule 405(a) abrogated the prior rule prohibiting
COMMENTARY
93ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 405
defendants from introducing character evidence through opin-
ion testimony and instead expressly permitted the practice.”
Id. at ¶ 30. Because, however, defendant failed to ask the trial
court to reconsider its ruling after IRE 405(a) became effective
(id.), the appellate court considered the issue under plain error
review standards, rejecting defendant’s argument—even if it
“assumed the incorrectness of the trial court’s decision.” Id. at
¶ 32. The appellate court thus determined that, even if error
had occurred, it was harmless error. Id. at ¶¶ 32-34. Thus, after
presenting the possibility that the allowance of character evi-
dence by testimony in the form of an opinion under IRE 405(a)
may allow for an expert’s opinion, the appellate court did not
determine whether an expert’s opinion about a defendant’s
character trait is properly admissible.
Although Garner provided no answer for the question it
raised, it presents the possibility that expert opinion evidence is
contemplated by IRE 405(a), but it cites no authority supporting
or rejecting that principle. In this writer’s opinion, offering such
evidence as “character” evidence is unacceptable for several
reasons.
First, Garner’s conclusion that the psychologist’s proffered
testimony about defendant’s personality traits constituted
admissible character evidence was erroneous, and thus was an
improper basis for its raising the possibility that such evidence
may have been subject to expert opinion testimony under IRE
405(a). In Michelson v. United States, 335 U.S. 469, 477 (1948),
a ruling that preceded the codication of the Federal Rules of
Evidence but fully applies to both the federal and Illinois codi-
cations, the United States Supreme Court stated that a character
witness “may not testify about defendant’s specic acts or
courses of conduct or his possession of a particular disposition
or of benign mental and moral traits.” As explained below, the
relevant rules on character evidence establish that conduct is
the basis for character evidence, and that an expert’s opinion
about a person’s psychological traits is not contemplated.
A person’s “conduct” forms the basis for proof of character
in Rule 405. The second sentence of FRE 405(a) allows a char-
acter witness to be cross-examined even on “relevant specic
instances of the person’s conduct.” Although IRE 405(a) has
not adopted that federal provision, both the federal and the
Illinois versions of Rule 405(b) allow proof of character or a
character trait to be proved by specic instances of a person’s
conduct when the person’s character or character trait is an
essential element of a charge, claim, or defense. Also, the
common-law exceptions for the admission of evidence of other
crimes, wrongs, or acts in Rule 404(b) are based on conduct,
not on personality traits or psychological evaluations. Likewise,
the exceptions for the prohibition of proof of propensity in IRE
404(b) are based on evidence of other crimes, wrongs, or acts—
based, in short, on “conduct.” Although the relevant federal and
Illinois rules prohibit proof of specic acts of conduct to prove
character, proof of character under both versions—whether
based on reputation or on opinion—is based on conduct.
In sum, each of the exceptions to the general rule prohib-
iting character evidence in IRE 404—whether based on com-
mon-law or a statute—is related to conduct. Even the exception
provided by IRE 404(a)(1) is based on reputation or opinion
evidence premised on a defendant’s prior conduct. The rules
make no allowance for expert opinion testimony on character
based on psychological evaluation, for that would result in pro-
pensity evidence which is permitted only in explicitly limited
circumstances, none of which includes the allowance of expert
opinion evidence based on a psychological examination.
Second, Garner focuses only on IRE 405(a), the rule that
provides the “methods of proving character,” and does not take
into account IRE 404(a), which generally prohibits evidence of
character traits “for the purpose of proving action in conformity
therewith on a particular occasion,” i.e., propensity. Garner’s
failure to refer to IRE 404(a) is signicant for that rule provides
the underlying basis for IRE 405(a)’s allowance of character
evidence by reputation or opinion. IRE 404(a) provides that
such evidence is allowed only “[i]n cases in which evidence
of character or a trait of character of a person is admissible.”
So, if—as IRE 404(a) provides—character evidence is generally
inadmissible and if there is no applicable exception to that
general rule, neither reputation nor opinion about character is
admissible.
IRE 404(a)(1), the rule that allows an accused in a criminal
case to offer “a pertinent trait of character,” is based on conduct
and is invoked generally to admit evidence that a defendant
COMMENTARY CONTINUED
94RULE 405 ARTICLE IV. RELEVANCY AND ITS LIMITS
is peaceful and/or honest and/or law-abiding. Consistent
with the inextricable relationship of “conduct” to character,
together with common law that preceded evidence codica-
tion, that rule was intended to allow a defendant in a criminal
case to present “proof of such previous good character as is
inconsistent with the commission of the crime with which he
is charged.” People v. Lewis, 25 Ill. 2d 442, 445 (1962). See
also Michelson, 335 U.S. at 479 (“the law gives defendant the
option to show as a fact that his reputation reects a life and
habit incompatible with commission of the offense charged”).
But the evidence offered by defendant in Garner had nothing to
do with her “previous good character” or “conduct,” nor with
her commission of the charged crime.
Nevertheless, because the State placed in issue motive
evidence, defendant was entitled to offer responsive evidence.
Defendant was the best witness to provide the relevant evi-
dence that the phone conversation with her husband had noth-
ing to do with her actions, a subject well within her capacity to
explain and one not requiring the helpful testimony of an expert
witness. Indeed, defendant provided such responsive evidence.
As Garner noted, defendant “testied in her own defense,
during which time she testied about her character traits; and,
notably, the trial court’s order did not cut off all other avenues
by which defendant could have presented evidence regarding
her character.” Garner, at ¶ 34.
If expert opinion testimony is deemed proper to counter
motive evidence in a case such as this, it should be admitted on
some other relevant basis, and not as inadmissible “character”
evidence under IRE 404 or IRE 405(a). For example, in People
v. Bergund, 2016 IL App (5th) 130119, without any reference
to character evidence, the appellate court held it was error to
prohibit the admission of a clinical psychologist’s testimony
that the defendant’s personality prole showed that he was
subject to manipulation, so his confession to the sexual abuse
of his two young daughters may have been false because of
psychological pressure, manipulation, and suggestions by his
wife and mother-in-law. For a discussion of Bergund, see the
Author’s Commentary on Ill. R. Evid. 702, under the heading
Expert Opinion on False Confession Based on Personality
Subject to Manipulation.
Third, allowing expert opinion on character—even where
genuine character evidence is involved—is inconsistent
with IRE 405(a)’s intent, which simply is to reect that most
witnesses who offer testimony about character traits based on
“reputation” frequently offer their own “opinion” about those
traits. This is conrmed by the many pre-codication instances
where trial courts struck the reputation testimony of a witness
who, when asked on cross-examination whether the witness
had talked to anyone about a person’s character, answered with
a rm “no,” thus disavowing the very basis for the admission
of “reputation” testimony. IRE 405(a)’s allowance of “opinion”
testimony about character does not represent a substantive
change, except to simply acknowledge that people do not
generally talk with others about a person’s character traits.
A belief such as “John Doe is a peace-loving man” is rarely
shared. But interactions with a person—about the conduct of
that person—result in “opinions” about the character traits of
that person. For that reason, Rule 405(a) now allows not only
reputation evidence, which is based on what others say about
the character of a person, but also opinion evidence, which is
based on a witness’s knowledge of the conduct of a person. The
rule provides no indication that it contemplates expert opinion
testimony about character.
Author’s Commentary on Ill. R. Evid. 405(b)(1)
There is no federal rule designated 405(b)(1), but IRE 405(b)
(1) is identical to FRE 405(b) before the latter’s amendment
solely for stylistic purposes effective December 1, 2011. The
codied Illinois rule is consistent with Illinois common law,
which permits evidence of specic instances of conduct
in causes of action where evidence of character or a trait of
character is an essential element of a charge, claim, or defense,
including, as the Committee Comment points out, in those
involving negligent hiring, negligent entrustment, and defama-
tion in certain cases.
COMMENTARY CONTINUED
95ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 405
COMMENTARY CONTINUED
In People v. Collins, 2013 IL App (2d) 110915, the defen-
dant invoked IRE 405(b) in contending that the trial court had
erred in barring him from impeaching a police ofcer with
information contained in the ofcer’s personnel le about a
specic instance of untruthfulness. In afrming the defendant’s
conviction for delivery of a controlled substance to the police
ofcer, the appellate court reasoned that the evidence was not
related to the ofcer’s ability to conduct the undercover drug
transaction, nor did it raise an inference that he had anything
to gain or lose during his testimony. Collins, at ¶ 19. Citing
the rule and its Committee Comment, the appellate court also
held that the ofcer’s character “is not an element of a charge,
claim or defense,” and therefore such character evidence was
not admissible under the rule. Id. at ¶ 20.
Author’s Commentary on Ill. R. Evid. 405(b)(2)
There is no federal rule designated 405(b)(2), nor is there a
federal rule that is a counterpart to the Illinois rule. IRE 405(b)
(2), however, codies Illinois common law in homicide and
battery cases, which allows admission of an alleged victim’s
prior conduct where self defense is alleged and there is con-
icting evidence as to who was the aggressor. See People v.
Lynch, 104 Ill. 2d 194, 200-01 (1984), which allows admission
of an alleged victim’s prior acts of violence in self-defense
cases, where there is conicting evidence as to who was the
aggressor, where (1) the defendant knows of such conduct
because it affects his perceptions of and reactions to the
victim’s behavior or where (2) the defendant does not know
of such conduct because the victim’s propensity for violence
tends to support the defendant’s version of the facts.
In People v. Barnes, 2017 IL App (1st) 143902, based on
remoteness-in-time considerations, the appellate court held
that the trial court properly refused to admit the victim’s convic-
tions for resisting arrest and battery that had occurred 21 years
before, and in People v. Martinez, 2019 IL App (2d) 170793,
based on the same considerations, in a prosecution for battery
the appellate court approved the trial court’s refusal to admit
the more-than 70-year-old victim’s 55-year-old conviction for
felony aggravated battery.
96RULE 406 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s
routine practice may be admitted to prove that on a
particular occasion the person or organization acted
in accordance with the habit or routine practice. e
court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity
with the habit or routine practice.
Author’s Commentary on Ill. R. Evid. 406
IRE 406 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. For a pre-codication case allowing evidence of the
routine practice of an organization even in the absence of cor-
roboration, see Grewe v. West Washington County Unit District
No. 10, 303 Ill. App. 3d 299, 307 (1999).
Illinois cases had been inconsistent on whether the avail-
ability of eyewitness testimony prohibited habit testimony, with
a trend in recent cases towards the admissibility of such evi-
dence regardless of the presence of eyewitness testimony. IRE
406 removes any doubt concerning the issue. See also section
(2) under the “Modernization” discussion in the Committee’s
general commentary on page 2 of this guide.
Although IRE 406 does not dene “habit,” the common-law
foundational requirement for habit evidence is well capsulized
in Alvarado v. Goepp, 278 Ill. App. 3d 494, 497 (1996):
“The party seeking to admit habit testimony must
‘show conduct that becomes semiautomatic,
invariably regular and not merely a tendency to
act in a given manner.’ [Citations.] ‘It is the notion
of virtually invariable regularity that gives habit its
probative force.’ M. Graham, Cleary & Graham’s
Handbook of Illinois Evidence, § 406.1 (6th ed.
1994).”
“careful habitS:” improper aS character evidence and aS habit
evidence
In Powell v. Dean Foods Co., 2013 IL App (1st) 082513-B,
¶¶ 118-128, a case where the plaintiffs’ concession that a plain-
tiff’s deceased driver was at least 25% contributorily negligent
for the vehicular accident that was the subject of the litigation,
the appellate court held that the trial court erred in instructing
the jury concerning the “careful habits” of that driver.
The special concurrence of Justice Stuart Palmer in Powell
(¶¶ 144-155), went further, however, and is especially note-
worthy. There, Justice Palmer addressed solely “careful habits”
evidence and its related jury instruction. At the outset, he
questioned “the continued viability of the concept of ‘careful
habits’ evidence and thus the use of IPI Civil (2006) No. 10.08
in any case.” Powell, at ¶ 146. As foundation for his doubts, he
quoted extensively from the discussion in Michael H. Graham’s
Handbook of Illinois Evidence, §§ 406.1 and 406.2 (10th ed.
2010), which reasoned that the “careful habits” instruction is
a relic of Illinois’ former requirement for a plaintiff in a neg-
ligence action to plead and prove freedom from contributory
negligence—a difcult task in wrongful death actions, a task
that thus was addressed by allowing evidence of the careful
habits of the decedent. He noted Graham’s reasoning that,
given the supreme court’s abolishment of the bar to recovery
based on contributory negligence and the introduction of
comparative negligence in Alvis v. Ribar, 85 Ill. 2d 1 (1981),
the necessity for such pleading and proof no longer exists.
He further noted Graham’s distinctions between character
and habit, particularly noting Graham’s characterization that
“[h]abit describes one’s regular response to a repeated specic
situation so that doing the habitual act becomes semiautomatic
and extremely regular.” Powell, at ¶ 151, quoting Graham, at
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
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97ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 406
§ 406.1, at 287 (with emphasis added by Justice Palmer). He
then emphasized Graham’s statement that “[e]vidence that one
is a ‘careful man’ is lacking the specicity of the act becoming
semiautomatic and extremely regular; it goes to character rather
than habit.” Powell, at ¶ 153, quoting Graham, at § 406.1, at
287. He then expressed his belief “that being a careful driver is
not a response to a repeated specic situation but rather a more
generalized description of a person’s character trait.” Powell,
at ¶ 154. Finally, having concluded that proof of “careful hab-
its” is nothing more than proof of character evidence, Justice
Palmer concluded with these remarks:
“As character evidence I believe it should be inad-
missible under our Rule 404(a). Therefore, as the
special circumstances that spawned the concept of
‘careful habits’ evidence no longer exist, and as I
feel that this is simply character evidence, I believe
the concept to no longer be viable and further that
IPI Civil (2006) No. 10.08 should be discarded.”
Powell, at ¶ 154.
Despite the 2013 Dean decision, “careful habits” remains
alive and well in Illinois. See, for example, Jacobs v. Yellow Cab
Afliation, Inc., 2017 IL App (1st) 151107, ¶¶ 112-117; see also
Karahodzic v. JBS Carriers, Inc., 881 F.3d 1009 (7th Cir. 2018)
(citing Jacobs for the proposition that “careful habits evidence
is admissible to show due care when the plaintiff is unavailable
to testify and no eyewitnesses other than the defendant are
available.”) Karahodzic, 881 F.3d at 1017.
For additional discussion of why “careful habits” evidence
should be excluded under the rule related to character, see the
Author’s Commentary on Ill. R. Evid, 404(a) Generally; see
also Marc D. Ginsberg, An Evidentiary Oddity:“Careful Habit”
– Does the Law of Evidence Embrace This Archaic/Modern
Concept? 43 Ohio N. U. L. Rev. 293 (2017), discussing the
origins of Illinois’ careful habits and calling for its aboli-
tion. Justice Palmer’s analysis and conclusions about “careful
habits” as habit testimony under IRE 406 and as character evi-
dence under IRE 404(a) are signicant. They should be heeded.
COMMENTARY CONTINUED
98RULE 407 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove:
· negligence;
· culpable conduct;
· a defect in a product or its design; or
· a need for a warning or instruction.
But the court may admit this evidence for another
purpose, such as impeachment or—if disputed—prov-
ing ownership, control, or the feasibility of precaution-
ary measures.
Rule 407. Reserved. [Subsequent Remedial
Measures]
Author’s Commentary on Reserved Ill. R. Evid. 407
appellate court conflict regarding productS liability caSeS
IRE 407 is reserved because of a conict in the decisions
of the appellate court concerning whether the bar to evidence
of subsequent remedial measures applies to products liability
cases in Illinois. An example of a case that holds that the bar
does not apply in such cases is Stallings v. Black and Decker
(U.S.), Inc., 342 Ill. App. 3d 676 (5th Dist. 2003); an example
of a case that holds that the bar does apply in products liability
cases is Davis v. International Harvester Co., 167 Ill. App. 3d
814 (2d Dist. 1988).
Jablonski’S conflict regarding negligence caSeS
On the other hand, before its decision in Jablonski v. Ford
Motor Co., 398 Ill. App. 3d 222 (5th Dist. 2010), both the
supreme court and the appellate court had uniformly barred
evidence of subsequent remedial measures in negligence cases,
while also uniformly holding that remedial measures taken
post-manufacture but pre-accident were barred in such cases.
See, e.g., Schaffner v. Chicago & North Western Transportation
Co., 129 Ill. 2d 1, 14 (1989) (“As a general rule, evidence of
subsequent remedial measures is not admissible as proof of
negligence.”). Quoting Lundy v. Whiting Corp., 93 Ill. App. 3d
244, 251-52 (1981), in Schaffner the supreme court reasoned:
“The rationale for this long-standing rule is two-
fold: correction of unsafe conditions should not
be deterred by the possibility that such an act will
constitute an admission of negligence, and more
fundamentally, a post-occurrence change is insuf-
ciently probative of prior negligence, because
later carefulness does not necessarily imply prior
neglect.”). Schaffner, 129 Ill. 2d at 14.
In its later decision in Herzog v. Lexington Township, 167 Ill.
2d 288 (1995), the supreme court reasoned as follows:
“Evidence of post-accident remedial measures
is not admissible to prove prior negligence.
Several considerations support this general rule.
First, a strong public policy favors encouraging
improvements to enhance public safety. Second,
subsequent remedial measures are not considered
sufciently probative of prior negligence, because
later carefulness may simply be an attempt to exer-
cise the highest standard of care. Third is a general
concern that a jury may view such conduct as an
admission of negligence.” Herzog, 167 Ill. 2d at
300 (internal citations omitted).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
99ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 407
In Jablonski, however, the appellate court deviated from
prior decisions in holding that the subsequent-remedial-mea-
sure bar did not apply.
committee’S original draft of rule 407 and reaSon for itS
withdrawal
Before the appellate court holding in the Jablonski case, the
Committee had drafted a proposed rule that essentially adopted
FRE 407, but that added a provision, subdivision (2), that incor-
porated the principle that the subsequent-remedial-measure
bar applied to a product that had been manufactured before
it caused an injury. After learning of the conict caused by the
Jablonski holding and after the supreme court granted review in
that case, however, the Committee withdrew its draft proposal,
expecting the supreme court to address and resolve the con-
icts described above.
In its opinion in Jablonski v. Ford Motor Co., 2011 IL 110096,
however, though it reversed the judgments of the circuit and
appellate courts, the supreme court based its decision on the
insufciency of the plaintiffs’ evidence related to negligent
design, the plaintiffs’ reliance on a non-cognizable postsale
duty to warn, and the plaintiffs’ faulty theory concerning the
defendant’s alleged voluntary undertaking. The court therefore
explicitly found it unnecessary to address various evidentiary
rulings, “including whether the trial court erred in admitting
evidence related to postsale remedial measures.” Thus, the
issue involving subdivision (2) in the rule originally proposed
by the Committee was not specically addressed, nor was
there a resolution of the conict in the appellate court holdings
concerning products liability cases.
The Committee’s withdrawn draft rule is presented below. It
includes subdivision (2), which excludes evidence of remedial
measures taken “after the manufacture of a product but prior to
an injury or harm allegedly caused by that product.” Because
of the conict that continues to exist in Illinois concerning
whether the rule applies in product liability cases, the rule on
subsequent remedial measures remains reserved. Unless the
supreme court decides to codify a rule on its own, the conict
that now exists on this issue will await resolution until a case in
controversy is submitted to it.
Draft rule 407. SubSequent remedial meaSureS (aS originally
drafted, before withdrawn by the committee)
When, (1) after an injury or harm allegedly caused
by an event, or (2) after manufacture of a product
but prior to an injury or harm allegedly caused
by that product, measures are taken that, if taken
previously, would have made the injury or harm
less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect
in a product’s design, or a need for a warning or
instruction. This rule does not require the exclusion
of evidence of subsequent measures when offered
for another purpose, such as proving ownership,
control, or feasibility of precautionary measures
or design, if controverted, or for purposes of
impeachment.
garCia deciSion
Garcia v. Goetz, 2018 IL App (1st) 172204, represents a rare
published post-codication decision involving the principle
of subsequent remedial measures, through not applying a
codied evidence rule but by applying Illinois common law. In
that case, while on a service call to repair a boiler, the plaintiff
was injured when he fell down a ight of stairs leading to the
basement of the defendants. The case was treated as involving
premises liability rather than negligence. Although photographs
of the stairway were produced and relied upon by the expert
witnesses on both sides, the stairs were removed as part of a
remodeling project before a physical inspection could occur.
The plaintiff argued that “the trial court should have allowed
evidence regarding [the removal of the stairs] to let the jury
decide if defendants had destroyed evidence and also to explain
why his expert was forced to testify from photographs instead of
from an in-person inspection of the stairway.” Garcia, at ¶ 42.
The trial court, however, granted the defendants’ motion in
limine, based on the principle of subsequent remedial mea-
sures, barring evidence that the defendant’s expert was unable
to inspect the basement stairway before its removal.
On appeal after a verdict for the defendants, the plaintiff
rst argued that, because the defendants denied “that the stairs
COMMENTARY CONTINUED
100RULE 407 ARTICLE IV. RELEVANCY AND ITS LIMITS
COMMENTARY CONTINUED
were dangerous or that the changes were made to remedy a
dangerous condition, the remodel cannot be considered a
subsequent remedial measure.” Id. at ¶ 43. Relying on the
denition of “subsequent remedial measure” in Black’s Law
Dictionary (i.e., “an action taken after an event, which, if
taken before the event, would have reduced the likelihood
of the event’s occurrence”), the appellate court reasoned that
the “denition does not suggest that a subsequent remedial
measure exists only when it is taken solely to remedy some
unsafe condition,” and thus it concluded that “the law does
not require [defendants] to acknowledge that they removed the
stairs specically to address safety issues in order to benet
from the general ban of evidence of post-remedial measures as
proof of negligence.” Id. at ¶ 44.
Citing Herzog in noting that, although inadmissible to prove
negligence, evidence of subsequent remedial measures may be
admissible for another purpose, such as “to prove ownership
or control of property if disputed by the defendant, to prove
feasibility of precautionary measures if disputed by the defen-
dant, or as impeachment” (id. at ¶ 46), the appellate court
concluded that the plaintiff’s focus was “not on the fact that
defendants removed and replaced the stairs, but on the timing
of that remodeling project, which occurred before [plaintiff’s]
expert was able to examine the stairway.” Id. at ¶ 47 (emphasis
in original).
Finally, in addressing the plaintiff’s contention that the
jury should have been allowed to decide the reasonableness
of defendants’ stated reason for removing the stairs before his
expert had an opportunity to view them, the appellate court
noted the tension between “spoliation” and the doctrine of
subsequent remedial measure. To address that tension, the
appellate court considered “the probative value of the spoli-
ation inference and whether or not evidence was destroyed
as a result of intentional wrongdoing or mere negligence.” It
held that the trial court had not abused its discretion in accept-
ing the defendants’ explanation that the stairs needed to be
removed as part of the requirement to remove all the drywall in
the basement in order to determine the source of water leakage
in that location. Id. at ¶¶ 47-49.
101ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 408
Rule 408. Compromise Oers and Negotiations
(a) Prohibited Uses. Evidence of the following
is not admissible—on behalf of any party—either to
prove or disprove the validity or amount of a disputed
claim or to impeach by a prior inconsistent statement
or a contradiction:
(1) furnishing, promising, or oering—or
accepting, promising to accept, or oering to
accept—a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or a statement made during com-
promise negotiations about the claim—except when
oered in a criminal case and when the negotiations
related to a claim by a public oce in the exercise of
its regulatory, investigative, or enforcement author-
ity.
(b) Exceptions. e court may admit this evidence
for another purpose, such as proving a witness’s bias
or prejudice, negating a contention of undue delay, or
proving an eort to obstruct a criminal investigation or
prosecution.
Rule 408. Compromise and Oers to Compromise
(a) Prohibited Uses. Evidence of the following is
not admissible on behalf of any party, when oered
to prove liability for, invalidity of, or amount of a
claim that was disputed as to validity or amount, or
to impeach through a prior inconsistent statement or
contradiction:
(1) furnishing or oering or promising to
furnish—or accepting or oering or promising to
accept—a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or statements made in compromise
negotiations regarding the claim.
(b) Permitted Uses. is rule does not require the
exclusion of any evidence otherwise discoverable merely
because it is presented in the course of settlement
negotiations. is rule also does not require exclusion
if the evidence is oered for purposes not prohibited
by subdivision (a). Examples of permissible purposes
include proving a witness’ bias or prejudice; negating
an assertion of undue delay; establishing bad faith; and
proving an eort to obstruct a criminal investigation or
prosecution.
Author’s Commentary on Ill. R. Evid. 408(a)
IRE 408(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for the deletion of the last portion of pre-
amended FRE 408(a)(2), which is also the last portion of the
current version of that federal rule. The deletion of everything
after the word “claim” in FRE 408(a)(2) means that the federal
rule’s specic exception to prohibited uses is not provided in
an Illinois criminal case. This rule alters the holdings of prior
appellate court decisions that held that admissions of fact were
not excluded merely because they were made in the course
of settlement or compromise negotiations. See Niehuss v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 143 Ill. App. 3d
444 (1986); Khatib v. McDonald, 87 Ill. App. 3d 1087 (1980).
See also section (3) under the “Modernization” discussion in
the Committee’s general commentary on page 2 of this guide.
For a case applying the rule in the context of an admin-
istrative law proceeding, see County of Cook v. Illinois Labor
Relations Board, 2012 IL App (1st) 111514 (in reversing a ruling
of the ILRB, noting Illinois’ adoption of the federal rule and
holding that testimony at a settlement conference was inadmis-
sible under FRE 408, which was substantially adopted by the
ILRB; see 80 Ill. Adm. Code 1200.120 (2010)). For another case
applying the rule in the context of a legal malpractice case,
see King Koil Licensing Company v. Harris, 2017 IL App (1st)
ILLINOIS RULES OF EVIDENCE
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102RULE 408 ARTICLE IV. RELEVANCY AND ITS LIMITS
161019, where in emails, in a letter, and in handwritten notes,
the defendant made offers to prosecute an action on behalf
of his former client against that client’s licensee without any
expense to it, the appellate court held that the trial court did
not err in barring the evidence of this compromise under IRE
408.
Because of the similar wording of the federal and Illinois
rules, a Seventh Circuit decision is relevant. In Wine & Canvas
Development, LLC v. Muylle, 868 F.3d 534 (7th Cir. 2017), the
plaintiff’s primary claim was for trademark infringement. During
the course of settlement discussions, the plaintiff said that his
goal was to “close [the defendant’s] door or [the plaintiff’s] ***
attorney would close [it] for [him].” Months later, the defendant
led a counterclaim alleging abuse of process. During a jury
trial, the district court allowed admission of the statement made
by the plaintiff during settlement discussions. The jury returned
verdicts against the plaintiff and in favor of the defendant
on its counterclaim. On appeal, the plaintiff challenged the
admission of the plaintiff’s statement on the basis that it was
inadmissible under FRE 408. The Seventh Circuit disagreed. It
reasoned that the statement had been made during settlement
discussions on the original claims of the plaintiff but the state-
ment was not relevant to those claims. Rather, it was relevant
to the later-led counterclaim for abuse of process, a claim that
was brought after the settlement discussions. Pointing out that
FRE 408(a) refers to “a disputed claim,” not “disputed claims”
or “any claims,” and that subdivisions (1) and (2) of paragraph
(a) also use the singular term “claim,” and further pointing out
that the defendant was allowed to admit the statement not to
disprove liability on the plaintiff’s claims “but rather to show
the [plaintiff’s] improper intent and ulterior motive in bringing
[its] lawsuit for the purpose of proving [the defendant’s] abuse
of process counterclaim,” the Seventh Circuit approved the
admission of the statement under the unusual circumstances
that existed in this case, because “settlement discussions usu-
ally encompass multiple claims all at once.”
Author’s Commentary on Ill. R. Evid. 408(b)
IRE 408(b) is identical to FRE 408(b) before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for Illinois’ addition of the rst sentence, to
make it clear that admissible evidence discoverable outside
the course of settlement negotiations is not excluded merely
because it was used in such discussions, and except for the
addition of “establishing bad faith” as another example of a
permissible purpose, and the substitution of “an assertion” for
“a contention” in the phrase “negating an assertion of undue
delay.”
Hana v. Illinois State Medical Inter-Insurance Exchange
Mutual Insurance Co., 2018 IL App (1st) 162166, was an action
to recover the assigned rights of two defendant doctors based
on a bad-faith claim for ISMIE’s failure to settle the underlying
medical malpractice litigation (in 2009) within the policy lim-
its. In this 2018 decision on the bad-faith claim, the appellate
court voided verdicts returned over ISMIE’s objection to a
six-person jury, but the court went on to address the on-remand
propriety of admitting into evidence a 2013 letter from plain-
tiff’s counsel to ISMIE, which offered to settle the lawsuit for the
$1.35 million excess verdict entered against the two doctors in
the underlying case. In the trial of the bad-faith claim, evidence
of the 2013 letter and additional testimony about the letter
had been admitted into evidence. This had been done under
IRE 408(b)’s permitted purpose of “establishing bad faith.” In
nding that the 2013 letter was not admissible on remand, the
appellate court provided this reasoning:
As an initial matter, we agree with ISMIE that
any evidence of the 2013 settlement offer was
barred by Rule 408. While Rule 408 does allow
the introduction of evidence of settlement offers
and negotiations to establish bad faith, we do not
believe that this exception includes the introduc-
tion of evidence with respect to the settlement of
the present litigation so as to establish ISMIE’s bad
faith with respect to its handling of the underlying
case. While no Illinois case has addressed this
specic issue, we note that Rule 408 “mirrors the
Federal Rule 408, which our state courts have
been applying to cases for years.” County of Cook
v. Illinois Labor Relations Board, Local Panel, 2012
IL App (1st) 111514, ¶ 35. At least one federal
COMMENTARY CONTINUED
103ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 408
court has recognized that evidence of an insurer’s
refusal to settle a bad faith case is inadmissible
for the purpose of establishing the insurer’s bad
faith in handling an underlying matter. Niver v.
Travelers Indemnity Co. of Illinois, 433 F. Supp. 2d
968, 994 (N.D. Iowa 2006). This is consistent with
the underlying policy of Rule 408; i.e., promoting
settlement.
Even if this evidence was not specically barred by
Rule 408, we agree with ISMIE that it is irrelevant.
“‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence.” Ill. R. Evid. 401 (eff. Jan.1,
2011). “Evidence which is not relevant is not
admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011).
In this case, the pleadings, evidence, arguments,
and jury instructions all reect that the ultimate
issue was whether ISMIE’s bad faith and willful and
wanton conduct caused the excess judgment to be
entered against the [two doctors] in the underlying
case. The underlying judgment was entered in
May 2009, and our prior decision afrming that
judgment was entered in August 2011. The [two
doctors] assigned their bad-faith claim to plaintiffs
in March 2010, in exchange for a covenant not
to enforce any excess judgment against the [two
doctors]. In light of these facts, we fail to see how
any refusal of ISMIE to settle this lawsuit in 2013
has any relevance with respect to whether ISMIE
engaged in bad faith and willful and wanton
conduct leading to the 2009 excess judgment.
Even if we accepted plaintiffs’ insistence that this
evidence shows continuing willful and wanton
conduct occurring after the 2009 excess judg-
ment, we reject any contention that such evidence
is in any way relevant to establishing that plaintiffs
were therefore damaged by the 2009 judgment.
Therefore, no evidence regarding the 2013
settlement letter should be admitted at trial upon
remand.
Hana, 2018 IL App (1st) 162166, ¶¶ 30-32 (emphases in
original).
COMMENTARY CONTINUED
104RULE 409 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 409. Oers to Pay Medical and Similar
Expenses
Evidence of furnishing, promising to pay, or oering
to pay medical, hospital, or similar expenses resulting
from an injury is not admissible to prove liability for
the injury.
Rule 409. Payment of Medical and Similar
Expenses
In addition to the provisions of section 8–1901 of
the Code of Civil Procedure (735 ILCS 5/8–1901),
evidence of furnishing or oering or promising to pay
medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for the injury.
Author’s Commentary on Ill. R. Evid. 409
IRE 409 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for the incorporation of the Illinois statute in
the rst clause. The cited statute excludes evidence of an offer
to pay or payment for medical expenses. It was re-enacted by
Public Act 97-1145, effective January 18, 2013, after amend-
ments made by Public Act 94-677 (which added provisions
related to expressions of grief, apology, sorrow, or explana-
tions from health care providers) was found unconstitutional,
because of an inseverability provision, in Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217 (2010)). The statute (735
ILCS 5/8-1901) is provided in the appendix at Appendix D.
For a case applying both the statute and the rule, see Lambert
v. Coonrod, 2012 IL App (4th) 110518 (applying the statute and
IRE 409 (applicable even though plaintiff’s injuries occurred
before the effective date of the codied evidence rules,
because the rules affect matters of procedure), and upholding
the trial court’s ruling excluding evidence that defendant made
in plaintiff’s hospital room about plaintiff and his wife having
nothing to worry about and that they “wouldn’t have to pay a
dime of any expenses” (Lambert, at ¶ 23), and holding that IRE
409 “is broad enough to include expenses beyond hospital and
medical costs” because it “excludes evidence to pay ‘similar
expenses occasioned by an injury’” (Id. at ¶ 25)).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
105ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 410
Rule 410. Pleas, Plea Discussions, and Related
Statements
(a) Prohibited Uses. In a civil or criminal case,
evidence of the following is not admissible against the
defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on
either of those pleas under Federal Rule of Criminal
Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions
with an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
(b) Exceptions. e court may admit a statement
described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement
made during the same plea or plea discussions has
been introduced, if in fairness the statements ought
to be considered together; or
(2) in a criminal proceeding for perjury or false
statement, if the defendant made the statement
under oath, on the record, and with counsel present.
Rule 410. Inadmissibility of Pleas,
PleaDiscussions, and Related Statements
Evidence of a plea discussion or any resulting
agreement, plea, or judgment is not admissible in any
criminal proceeding against the defendant who made
the plea or was a participant in the plea discussions
under the following circumstances:
(1) a plea of guilty which is not accepted or is
withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any
proceedings under Illinois Supreme Court Rule 402
regarding either of the foregoing pleas; or
(4) any statement made in the course of a plea
discussion which does not result in a plea of guilty, or
which results in a plea of guilty which is not accepted
or is withdrawn, or which results in a judgment on a
plea of guilty which is reversed on direct or collateral
review.
Author’s Commentary on Ill. R. Evid. 410
IRE 410 is based on Illinois Supreme Court Rule 402(f), and
is identical to the federal rule before the latter’s amendment
solely for stylistic purposes effective December 1, 2011, except
that the Illinois rule: (1) is modied to distinguish Illinois from
federal proceedings and (2) applies only to criminal and not to
civil proceedings. Note also that, effective October 15, 2015,
the supreme court amended the original version of IRE 410 in
order to make it consistent with Supreme Court Rule 402(f). In
addition to clarifying language, the amendment deleted the for-
mer nal paragraph, which was substantially identical to what
is now FRE 410(b), but is not addressed by Rule 402(f). The
result is that IRE 410 does not have the exceptions provided by
FRE 410(b).
Supreme court rule 402(f)
Supreme Court Rule 402(f), which is the rule cited in all of
the decisions provided below, states in its entirety:
“If a plea discussion does not result in a plea of
guilty, or if a plea of guilty is not accepted or is
withdrawn, or if judgment on a plea of guilty is
reversed on direct or collateral review, neither
the plea discussion nor any resulting agreement,
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
106RULE 410 ARTICLE IV. RELEVANCY AND ITS LIMITS
plea, or judgment shall be admissible against the
defendant in any criminal proceeding.”
determining whether StatementS occurred during “plea
diScuSSion”
When a defendant seeks concessions from a police ofcer
or a prosecutor, usually before or after an arrest and not as part
of court proceedings, the issue that arises is whether statements
made by the defendant were part of a “plea discussion” within
the meaning of Rule 402(f), as well as IRE 410(4). The consid-
erations that apply to resolve the issue are best summarized in
People v. Rivera, 2013 IL 112467:
“Not all statements made by a defendant in the
hope of obtaining concessions are plea discus-
sions. There is a difference between a statement
made in the course of a plea discussion and an
otherwise independent admission, which is not
excluded by Rule 402(f). The determination is not
a bright-line rule and turns on the factual circum-
stances of each case. In making this determination,
we may consider the nature of the statements, to
whom defendant made the statements, and what
the parties to the conversation said. Before a
discussion can be characterized as plea related,
it must contain the rudiments of the negotiation
process, i.e., a willingness by defendant to enter
a plea of guilty in return for concessions by the
State. Where a defendant’s subjective expectations
to engage in plea negotiations are not explicit,
the objective circumstances surrounding the
statement take precedence in evaluating whether
the statement was plea related.” Rivera, at ¶ 19
(citations and internal quotation marks omitted).
The supreme court has provided a two prong test for
determining the non-admissibility of a plea-related statement,
containing both a subjective and an objective component.
The test is whether: (1) the defendant exhibited a subjective
expectation to negotiate a plea, and (2) the expectation was
reasonable under the totality of the objective circumstances.
People v. Friedman, 79 Ill. 2d 341, 351-52 (1980); Rivera, at
¶ 18.
deciSionS determining that rule 402(f) did not apply
In People v. Rivera, 2013 IL 112467, the supreme court
applied the test provided under the preceding heading. There,
in reversing the holding of the appellate court, the court found
that the defendant’s two statements, one to a police ofcer and
the other to the same ofcer and an assistant state’s attorney,
about obtaining guarantees he might receive if he spoke to them
or gave a confession about the alleged sexual offenses he was
alleged to have committed, were admissible as independent
admissions and not plea-related. The supreme court held that
the defendant’s statements “are not accurately characterized
as an attempt to engage in plea negotiations,” and “it must
be clear that a defendant actually intends to plead guilty in
exchange for a concession by the State, and that such intention
is objectively reasonable under the circumstances.” Rivera, at
¶ 30. The court therefore upheld the admission of evidence of
the defendant’s effort to obtain guarantees.
Other supreme court decisions holding that statements of
defendants were not plea-related and therefore admissible at
trial include People v. Jones, 219 Ill. 2d 1 (2006) (reasoning that
“while Rule 402(f) was enacted to encourage the negotiation
process, it was not enacted to discourage legitimate interroga-
tion techniques. Those arrested often seek leniency, and not all
attendant statements made in the hope of gaining concessions
are plea-related statements under Rule 402(f);” and holding
that, although not discernible from the record, taking as true
defendant’s allegations that he offered to bargain when talking
to police, the objective circumstances in the case revealed that
any expectation that he was engaged in plea negotiations was
not reasonable); and People v. Hart, 214 Ill. 2d 490 (2005)
(defendant’s suggestion that he might be willing to cooperate
with a detective, but that he rst wanted to know what the
detective could do for him, did not constitute a plea-related
discussion; Rule 402(f) was not meant to exclude from admis-
sion evidence of mere offers of cooperation that do not include
a willingness to plead guilty).
People v. Neese, 2015 IL App (2d) 140368, a prosecution for
a felony theft offense, cites and relies on numerous principles
from Rivera in holding that the statement of a police ofcer
that he told defendant over the phone that, if defendant would
COMMENTARY CONTINUED
107ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 410
come in and give a full, written confession, he would consider
charging defendant only with a misdemeanor offense, did not
constitute a plea-related discussion, because neither the police
ofcer nor defendant stated anything about a possible guilty
plea. For that reason, the defendant’s statement that, if he came
in (he didn’t) he (the defendant) would write that he had taken
about $50 worth of coins from washing machines on each of
12 occasions, was admissible. Citing Rivera (see Rivera at ¶ 29),
the appellate court emphasized “that this is the type of situation
in which a court should resist characterizing a commonplace
conversation between a police ofcer and a suspect as a plea
negotiation.” People v. Neese, 2015 IL App (2d) 140368, ¶ 19.
In People v. Eubanks, 2021 IL 126271, a year after having
been charged with rst degree murder and aggravated battery
with a rearm, defendant gave detectives an inculpatory
videotaped statement. Soon thereafter, he pleaded guilty to
rst degree murder. Still later, the trial court held a hearing on
defendant’s motions to withdraw his plea of guilty, and granted
those motions. A stipulated bench trial followed, during which
defendant’s videotaped statement was admitted into evidence.
Defendant, who had previously been offered 35 years’ impris-
onment in a recanted negotiated plea in exchange for his guilty
plea and agreement to testify against two others involved in
the murder, was found guilty of rst degree murder and he was
sentenced to 50 years’ imprisonment. After the afrmance of
his conviction and sentence, defendant led a postconvic-
tion petition in which he alleged that his trial counsel was
ineffective for failing to seek suppression of his videotaped
statement at trial, pursuant to Illinois Supreme Court Rule
402(f). (The attorney had moved to suppress the statement
on 5th and 14th amendment grounds, but not on the basis of
Rule 402(f).) In a split decision, the appellate court held that
defendant’s videotaped statement was properly admitted. See
2020 IL App (3d) 189117. The majority held that defendant’s
videotaped statement was not made during plea discussions
and was thus admissible at his trial. The dissenting justice
contended that nothing in the language of Rule 402(f) nor in
its accepted purpose distinguishes between a statement made
during plea negotiations and a statement offered pursuant to
said negotiations.
In its review of the appellate court decision, the supreme
court applied Ill. S. Ct. R. 402 (f), and cited federal court deci-
sions on FRE 410, prior Illinois Appellate Court decisions, and
the evidence presented at the third stage of the postconviction
evidentiary proceedings. The court concluded that defendant’s
statement was not made during plea discussions and was there-
fore admissible at defendant’s trial. The court relied in part on
the testimony of defendant and his attorney at the third stage of
the postconviction proceedings that defendant had agreed to
plead guilty before defendant made his videotaped statement.
Concluding that it could “easily conclude based on this record
that a plea deal was rmly in place before the videorecorded
statement was made and that the statement was made pursuant
to the deal” (Eubanks, 2021 IL 126271, at ¶ 47), the supreme
court reasoned as follows:
The construction rendered by these [federal and
Illinois Appellate] courts is not only consistent
with the plain language of Rule 402(f) but also
with its purpose, which “is to encourage the
negotiated disposition of criminal cases through
elimination of the risk that the accused enter plea
discussions at his peril.” [Citation]. The rule’s
purpose is accomplished by excluding statements
made during the negotiation process. Once nego-
tiations are complete and the parties have reached
an agreement, however, there is nothing more for
the rule to “encourage.” At this point, the case is
most likely to be resolved according to the parties’
agreed disposition. Eubanks, at ¶ 40.
Finally, addressing defendant’s policy argument, the
supreme court reasoned as follows:
Defendant argues before this court that, even if
the statement in this case was given after a plea
deal had been reached and in performance of that
deal, it should still be inadmissible as a matter
of policy. But defendant offers no valid basis for
reading the term “plea discussions” in the rule to
encompass something more than negotiations.
More importantly, he fails to identify a single case
that supports his position. Indeed, all the cases
COMMENTARY CONTINUED
108RULE 410 ARTICLE IV. RELEVANCY AND ITS LIMITS
considering the issue uniformly hold that state-
ments given after a plea agreement is nalized are
admissible. Eubanks, at ¶ 42.
deciSionS determining that rule 402(f) applied
Two supreme court decisions that held that statements of
defendants were plea-related and therefore not admissible
at trial are People v. Friedman, 79 Ill. 2d 341, 351-52 (1980)
(holding that defendant’s statement to an Attorney General
investigator, a month after his indictment, about “making a
deal” and that his “unsolicited statement was an offer to enter
negotiation,” which was “a clear indication of defendant’s
intent to pursue plea negotiations,” thus rendering inadmissible
his statement at trial); and People v. Hill, 78 Ill. 2d 465 (1980)
(defendant’s statement to an assistant state’s attorney that he
“wanted to talk a deal” and then spelling out the terms he would
agree to, constituted plea-related discussion, thus rendering his
statements at trial inadmissible).
In determining whether statements are plea-related, note
that, in distinguishing the statements of the defendants in
Friedman and Hill, in Rivera the supreme court reasoned as
follows:
“Unlike the defendants in Friedman and Hill,
defendant did not exhibit a subjective expectation
to negotiate a plea. Defendant did not ask for
any specic concessions from the State, only
for unspecied ‘guarantees.’ Nor did defendant
actually offer to plead guilty. Because defendant
had not yet been charged when he made the
statements, it is not apparent what concessions
defendant hoped to receive in exchange for his
confession. Not all statements made in the hopes
of some concession are plea related.” Rivera, at
¶ 26 (also citing appellate court decisions holding
that statements were not plea-related).
cooperation agreementS
In People v. Stapinski, 2015 IL 118278, the Illinois Supreme
Court distinguished a “cooperation agreement” from the type
of plea agreements that are covered by IRE 410 and Supreme
Court Rule 402(f), or from the grant of immunity. In Stapinski,
the supreme court applied contract principles in holding that,
where a defendant fullls his part of a cooperation agreement—
an agreement with police to cooperate in developing a case
against another in exchange for not being charged—due pro-
cess principles require that the agreement be honored and that
a charge brought in violation of the agreement be dismissed.
The court further held that due process requires enforcement
even where the State has not approved of the agreement, hold-
ing that “[a]n unauthorized promise may be enforced on due
process grounds if a defendant’s reliance on the promise has
constitutional consequences.” Stapinski, at ¶ 55.
COMMENTARY CONTINUED
109ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 411
Rule 411. Liability Insurance
Evidence that a person was or was not insured
against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully. But
the court may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice or proving
agency, ownership, or control.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against
liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. is
rule does not require the exclusion of evidence of insur-
ance against liability when oered for another purpose,
such as proof of agency, ownership, or control, or bias
or prejudice of a witness.
Author’s Commentary on Ill. R. Evid. 411
IRE 411 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. See Imparato v. Rooney, 95 Ill. App. 3d 11 (1981)
(evidence that a party has insurance is generally inadmissible
because being insured has no bearing on the question of negli-
gence and may result in a higher award); Lenz v. Julian, 276 Ill.
App. 3d 66 (1995) (improper to inform the jury, either directly
or indirectly, that a defendant is or is not insured against a judg-
ment that might be entered against him in a negligence action).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
110RULE 412 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 412. Sex-Oense Cases: e Victim’s Sexual
Behavior or Predisposition
(a) Prohibited Uses. e following evidence is not
admissible in a civil or criminal proceeding involving
alleged sexual misconduct:
(1) evidence oered to prove that a victim
engaged in other sexual behavior; or
(2) evidence oered to prove a victim’s sexual
predisposition.
(b) Exceptions.
(1) Criminal Cases. e court may admit the
following evidence in a criminal case:
(A) evidence of specic instances of a victim’s
sexual behavior, if oered to prove that someone
other than the defendant was the source of semen,
injury, or other physical evidence;
(B) evidence of specic instances of a vic-
tim’s sexual behavior with respect to the person
accused of the sexual misconduct, if oered by the
defendant to prove consent or if oered by the
prosecutor; and
(C) evidence whose exclusion would violate
the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may
admit evidence oered to prove a victim’s sexual
behavior or sexual predisposition if its probative
value substantially outweighs the danger of harm to
any victim and of unfair prejudice to any party. e
court may admit evidence of a victim’s reputation
only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to oer evidence
under Rule 412(b), the party must:
(A) le a motion that specically describes the
evidence and states the purpose for which it is to
be oered;
(B) do so at least 14 days before trial unless
the court, for good cause, sets a dierent time;
(C) serve the motion on all parties; and
Rule 412. Prior Sexual Activity or Reputation as
Evidence
Evidence of the sexual activity or reputation of
a person alleged to be a victim of a sexual oense is
inadmissible:
(a) in criminal cases, as provided for and subject to
the exceptions in section 115-7 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-7);
(b) in civil cases, as provided for and subject to
the exceptions in section 8-2801 of the Code of Civil
Procedure (735 ILCS 5/8-2801).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
111ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 412
(D) notify the victim or, when appropriate,
the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under
this rule, the court must conduct an in camera hear-
ing and give the victim and parties a right to attend
and be heard. Unless the court orders otherwise,
the motion, related materials, and the record of the
hearing must be and remain sealed.
(d) Denition of “Victim.” In this rule, “victim”
includes an alleged victim.
Author’s Commentary on Ill. R. Evid. 412
IRE 412 was adopted by the Illinois Supreme Court effec-
tive October 15, 2015. The rule’s adoption acknowledges the
applicability of rape shield statues in both criminal and civil
trials. Because IRE 412 merely refers to the relevant statutes,
familiarity with each statute’s contents is necessary. The statutes
are provided at Appendix E and Appendix F. The following
commentary offers a comparison of the Illinois statutes with
the federal rule’s subdivisions.
Statutory counterpartS to fed. r. evid. 412(a)’S bar to admiSSion
Section 115‑7 of the Code of Criminal Procedure of 1963
(725 ILCS 5/115-7), which limits the admissibility of the prior
sexual activity or reputation of a victim of a sexual offense and
is commonly referred to as the “rape shield statute” or the “rape
shield law” or the “rape shield bar,” is the counterpart to FRE
412. The statute is provided in the appendix to this guide at
Appendix E. Like FRE 412(a), in prosecutions for specied sex-
ual offenses and specied offenses involving sexual penetration
or sexual conduct, the statute prohibits evidence of the prior
sexual activity or of the reputation (akin to the federal rule’s
“predisposition”) of an alleged victim or corroborating witness
under section 115-7.3 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115-7.3; available at Appendix A), with lim-
ited exceptions. Through section 115-7’s reference to section
115-7.3, “corroborating witness” refers to a propensity witness
who provides evidence of another sexual offense of the defen-
dant, as allowed by that statute. The supreme court has ruled
that section 115-7 applies both to the State and to the defense
and that it is unambiguous in prohibiting admissibility of a
victim’s prior sexual history, but for the exceptions (given under
the following heading) that it explicitly provides. See People v.
Patterson, 2014 IL 115102, ¶¶ 113-123; People v. Santos, 211
Ill. 2d 395 (2004); People v. Sandoval, 135 Ill. 2d 159 (1990).
In United States v. Groce, 891 F. 3d 260 (7th Cir. 2018), the
defendant appealed his conviction for sex-trafcking for which
he was sentenced to imprisonment for 25 years. The defendant
contended, inter alia, that the district court had erred in exclud-
ing evidence during his jury trial of the prostitution histories
of women who were alleged victims of his sex-trafcking, on
the basis that the evidence was relevant to his mens rea in this
case—one which required proof of the knowing use of (or
reckless disregard concerning the use of) force, threats of force,
fraud, or coercion. Invoking the “constitutional rights” excep-
tion in FRE 412(b)(1)(C), he argued that the district court had
erred in excluding evidence of the prior prostitution histories
by the erroneous application of FRE 412(a). Citing FRE 412(a),
which bars “evidence offered to prove that a victim engaged in
other sexual behavior,” and prior related 7th Circuit decisions,
the court held that the district court had ruled correctly, for a
victim’s prior sexual conduct is irrelevant to the required mens
rea for sex-trafcking.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
112RULE 412 ARTICLE IV. RELEVANCY AND ITS LIMITS
Note that in civil cases, Public Act 96-0307, effective January
1, 2010, created section 8‑2801 of the Code of Civil Procedure
(735 ILCS 5/8-2801). That statute provides provisions similar
to those in section 115-7 of the Code of Criminal Procedure
of 1963 regarding inadmissibility of evidence of prior sexual
activity and reputation. The statute is provided in the appendix
at Appendix F.
Statutory counterpartS to fed. r. evid. 412(b)’S exceptionS
Similar to the exceptions provided by FRE 412(b), sec-
tion 115-7(a) of the Code of Criminal Procedure of 1963
(see Appendix E) provides exceptions to the general rule of
exclusion where the evidence concerns past sexual conduct
with the accused relevant to the issue of consent or when
the evidence is constitutionally required to be admitted. See
People v. Maxwell, 2011 IL App (4th) 100434 (discussing other
cases applying section 115-7(a) and holding that a theoretical
cross-examination question posed by defense counsel to a
doctor (“Is it possible that the alteration of the hymen of this
girl could have happened from sexual intercourse by someone
other than defendant?”) was properly prohibited by the trial
court in the absence of evidence that someone else may have
been responsible, which would have made it constitutionally
required).
In civil cases, section 8-2801 of the Code of Civil Procedure
(735 ILCS 5/8-2801; see Appendix F), provides exceptions to
the general rule of inadmissibility of prior sexual activity or rep-
utation where the evidence is offered “to prove that a person
other than the accused was the source of semen, injury or other
physical evidence” or to prove prior sexual activity with the
defendant in order to prove consent.
relevant illinoiS deciSionS
In People v. Patterson, 2014 IL 115102, the supreme court
emphasized:
“the absolute nature of the rape shield bar, subject
only to two narrow statutory exceptions for ‘evi-
dence concerning the past sexual conduct of the
alleged victim [or corroborating witness] *** with
the accused’ and evidence that is ‘constitutionally
required to be admitted.’ (Internal quotation marks
omitted.) [People v.] Santos, 211 Ill. 2d [395] at
401.” Patterson at ¶ 114.
In Patterson, the court also noted the dicta in People
v. Sandoval, 135 Ill. 2d 159, 185 (1990), “stating that one
‘extraordinary circumstance’ potentially satisfying the consti-
tutional requirement exception to the rape shield statute is an
offer of evidence providing an alternative explanation for the
victim’s observed injuries.” The court noted, however, that in
the case at bar the examining physician had not testied that
the alleged injury to the victim (cervical redness) was the result
of a rape. Thus, there was no basis for applying an exception to
the rape shield bar.
In addition to the dicta in Sandoval, for examples of cases
providing insight into “constitutionally required” reasons that
may necessitate exceptions to the general rule of exclusion
provided by the rape shield bar, see Olden v. Kentucky, 488
U.S. 227 (1988) (holding that where the man with whom the
alleged victim was cohabiting saw her exit the co-defendant’s
car, defendant had the constitutional right under the Sixth
Amendment confrontation clause to question the alleged vic-
tim about her cohabitation with that man to show her motive
in making the claim of rape); People v. Gorney, 107 Ill. 2d 53
(1985) (although afrming the conviction because the evidence
was deemed to be overwhelming, holding that “[e]vidence of
false allegations of rape may be admissible”).
See also People v. Bates, 2018 IL App (4th) 160255, an aggra-
vated criminal sexual assault prosecution, where the appellate
court noted that defendant conceded that the DNA found on
the victim’s clothing, which matched the victim’s two consen-
sual partners, should be excluded based on the rape shield law.
But the court held that, based on the same law, the trial court
properly rejected defendant’s contention that the DNA of a
third but unidentied male found on the victim’s vaginal swab
should have been admitted as constitutionally required. The
bases of defendant’s contentions were that, though defendant
could not be excluded as the potential source of DNA found
on the victim’s anal swab, there was no denite match with his
DNA and, because the victim had testied that she had been
both vaginally and anally penetrated, the unknown male may
have been the source of the DNA on the anal swab as well,
COMMENTARY CONTINUED
113ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 412
COMMENTARY CONTINUED
and thus the actual offender. Noting that “[d]efendant’s own
expert witness conceded that the DNA prole found on [the
victim’s] anal swab would only occur in one out of every 840
trillion individuals in the African-American population” (Bates,
at ¶ 62; interior quotation marks omitted), and reasoning that
“the statistical improbabilities that an unidentied person other
than defendant contributing both the semen on [the victim’s]
vaginal swab and anal swab, this evidence would not make
a meaningful contribution to the fact-nding enterprise” (id.
at 63), the court concluded “at best, the unidentied semen
would be marginally relevant.” Id. at 64. In addition to concerns
that “this evidence would pose an undue risk of harassment,
prejudice, and confusion of the issues,” the court concluded
that assuming the unidentied semen was from a consensual
partner, such evidence would have no bearing on whether [the
victim] consented to sexual relations with the defendant.” Id.
(interior quotation marks omitted). Having previously noted
that the jury heard that defendant’s DNA was found on a
victim of another sexual assault under similar circumstances
a few weeks after the assault in the case at bar, and pointing
out that defendant had confronted the State’s expert witness
on cross-examination by demonstrating that his DNA was not
found on the victim’s vaginal swab and that he was not a direct
match of the victim’s anal swab, and further that this was not a
case where defendant contended that he had consensual sexual
relations with the victim, the appellate court held that the trial
court did not abuse its discretion in denying the introduction of
the unidentied DNA.
illinoiS’ Statutory counterpartS to fed. r. evid. 412(c)’S
procedureS
Section 115-7(b) of the Code of Criminal Procedure of 1963
(see Appendix E) requires the defendant to make an offer of
proof, at a hearing held in camera, concerning the past sexual
conduct or reputation of the alleged victim or corroborating
witness, in order to obtain a ruling concerning admissibility.
That section identies the type of information required for the
offer of proof. It also provides that, to admit the evidence, the
court must determine that the evidence is relevant and that the
probative value of the evidence outweighs the danger of unfair
prejudice.
In civil cases, section 8-2801(c) of the Code of Civil
Procedure (735 ILCS 5/8-2801(c); see Appendix F) requires the
defendant to le a written motion at least 14 days before trial
describing the evidence and the purpose for which it is offered,
and it requires the court to conduct an in camera hearing, with
the record kept under seal, before allowing admission of the
evidence.
114RULE 413 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a
defendant is accused of a sexual assault, the court may
admit evidence that the defendant committed any other
sexual assault. e evidence may be considered on any
matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor
intends to oer this evidence, the prosecutor must
disclose it to the defendant, including witnesses’ state-
ments or a summary of the expected testimony. e
prosecutor must do so at least 15 days before trial or at
a later time that the court allows for good cause.
(c) Eect on Other Rules. is rule does not limit
the admission or consideration of evidence under any
other rule.
(d) Denition of “Sexual Assault.” In this rule
and Rule 415, “sexual assault” means a crime under
federal law or under state law (as “state” is dened in 18
U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter
109A;
(2) contact, without consent, between any part
of the defendant’s body—or an object—and another
person’s genitals or anus;
(3) contact, without consent, between the
defendant’s genitals or anus and any part of another
person’s body;
(4) deriving sexual pleasure or gratication from
inicting death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in con-
duct described in subparagraphs (1)–(4).
Rule 413. Evidence of Other Oenses in Criminal
Cases
(a) Evidence in Certain Cases. In a criminal case
for an oense set forth in section 115-7.3 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/115-7.3),
evidence of the defendant’s commission of another
oense or oenses set forth in section 115-7.3 is admis-
sible, as provided in section 115-7.3.
(b) Evidence in Domestic Violence Cases. In a
criminal case for an oense related to domestic violence
as set forth in section 115-7.4 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-7.4), evidence
of the defendant’s commission of another oense or
oenses of domestic violence is admissible, as provided
in section 115-7.4.
(c) Evidence of Prior Convictions. In a criminal
case for the type of oenses set forth in section 115-20
of the Code of Criminal Procedure of 1963 (725 ILCS
5/115-20), evidence of the defendant’s conviction for
an oense set forth in that section is admissible when
the victim is the same person who was the victim of the
previous oense that resulted in the conviction of the
defendant, as provided in section 115-20.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
115ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 413
Author’s Commentary on Ill. R. Evid. 413
IRE 413 was adopted by the Illinois Supreme Court effective
October 15, 2015. The rule acknowledges and adopts the
statutes that allow admission of offenses which provide pro-
pensity evidence that is otherwise prohibited. The statutes that
are referred to in each of the three subdivisions of IRE 413 are
discussed below.
ire 413(a) and Section 115-7.3
In the prosecution of certain specied sexual offenses or
other specied offenses involving sexual penetration or sexual
conduct (listed in the next paragraph), section 115‑7.3 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3;
see Appendix A), entitled “Evidence in certain cases,” allows
evidence concerning the defendant’s commission of the same
or another of the offenses specied in the statute. Note, too,
that IRE 404(b) also specically refers to the provisions of
section 115-7.3 as an exception to the general rule prohibiting
propensity evidence.
Section 115-7.3 of the Code of Criminal Procedure of 1963
(see Appendix A) applies to criminal cases in which the defen-
dant is accused of predatory criminal sexual assault of a child,
aggravated criminal sexual assault, criminal sexual assault,
aggravated criminal sexual abuse, criminal sexual abuse, child
pornography, aggravated child pornography, or criminal trans-
mission of HIV. It also applies where the defendant is accused
of battery, aggravated battery, rst degree murder, or second
degree murder, when the commission of the offense involves
sexual penetration or sexual conduct. It applies, too, where the
defendant is tried or retried for any of the offenses formerly
known as rape, deviate sexual assault, indecent liberties with a
child, or aggravated indecent liberties with a child.
Like FRE 413(a), section 115-7.3(b) provides that evidence
of the other offenses it allows “may be considered for its
bearing on any matter to which it is relevant.” Section 115-
7.3(e) provides that “proof may be made by specic instances
of conduct, testimony as to reputation [‘only after the party
opposing has offered that testimony’], or testimony in the form
of an expert opinion.”
Donoho and WarD, and deciSionS applying them
In People v. Donoho, 204 Ill. 2d 159, 177 (2003), the supreme
court determined that section 115-7.3, which allows propen-
sity evidence, does not violate equal protection. Although that
decision did not directly rule on whether the statute violated
due process, the appellate court in People v. Beaty, 377 Ill.
App. 3d 861 (2007), stated that the supreme court implicitly
held that it did not violate that protection. In any case, Beaty
and People v. Everhart, 405 Ill. App. 3d 687 (2010), explicitly
held that the statute did not violate due process.
Citing Donoho and section 115-7.3, in People v. Vannote,
2012 IL App (4th) 100798, ¶¶ 35-42, the appellate court
afrmed the trial court’s admission of evidence, for propensity
purposes, of the defendant’s prior conviction for aggravated
criminal sexual abuse, in a prosecution for aggravated criminal
sexual abuse.
In People v. Ward, 389 Ill. App. 3d 757 (2009), citing United
States and Illinois Supreme Court precedent, the appellate court
upheld the admission of evidence of a prior sex offense, as
propensity evidence under section 115-7.3, even though a jury
had acquitted the defendant of that prior offense. In its review
of that appellate court decision in People v. Ward, 2011 IL
108690, noting that it had previously upheld the constitution-
ality of section 115-7.3 in Donoho, and that the defendant had
not challenged either the constitutionality or the admissibility
of the propensity evidence for its review, the supreme court
determined that it did not need to address the appellate court’s
holding regarding the admission of evidence of the prior sex
offense on which there had been an acquittal but, addressing
the issue squarely before it, held that the trial court’s ruling
barring the evidence of the acquittal was improper.
In People v. Rosado, 2017 IL App (1st) 143741, which
involved the admission of evidence to establish identity under
Rule 404(b), the appellate court held that the trial court abused
its discretion in allowing the admission of a subsequent offense
of delivery of a controlled substance because such evidence
could not bolster identication of the defendant as the person
who delivered a controlled substance in the earlier charged
offense. Also, as relevant here, the court invoked the supreme
COMMENTARY
116RULE 413 ARTICLE IV. RELEVANCY AND ITS LIMITS
court decision in Ward in holding that the trial court erred in
not allowing evidence of the earlier acquittal of the defendant
for the subsequent offense which had been admitted into evi-
dence for the purpose of establishing identity (as opposed to
proof of propensity as in Ward).
time between prior act and offenSe on trial
Citing Donoho, Ward, and Vannote, in People v. Smith, 2015
IL App (4th) 130205, the appellate court upheld the admission
of prior uncharged sexual abuse offenses, under section 115-
7.3, in a prosecution for sexual abuse offenses. Recognizing
that the prior offenses had occurred 12 to 18 years prior to the
offenses on trial, the court pointed out that the supreme court
in Donoho had “decline[d] to adopt a bright-line rule about
when prior convictions are per se too old to be admitted under
section 115-7.3,” and that the supreme court had noted that
the “appellate court has afrmed admission of other-crimes
evidence over 20 years old...” Smith, at ¶ 29, citing People v.
Donoho, 204 Ill. 2d 159, 183, 184 (2003), and People v. Davis,
260 Ill. App. 3d 176, 192 (1994).
See also the discussion of People v. Kitch, 2019 IL App (3d)
170522, ¶ 33, supra, in the commentary on IRE 404(b) under
the heading Applying Sections 115-7.3 and 115.7.4, where the
appellate court made the same observation about Donoho and
approved admission of a prior offense that occurred 13 years
before the charged offense.
In People v. Lobdell, 2017 IL App (3d) 150074, a majority of
the appellate court panel held that during the defendant’s bench
trial for the offense of criminal sexual assault the trial court had
not erred in admitting, for propensity purposes, evidence of a
rape conviction 30 years earlier. The majority pointed out that
the defendant had been incarcerated for the rape conviction for
28 of the 30 years, and it cited the decisions in Donoho, where
12 to 15 years had elapsed between offenses; Davis, where a
prior sex act occurred over 20 years before; and Smith, where
12 to 18 years had elapsed between the offenses. The dissenting
justice challenged the admission of the 30-year-old conviction
for rape primarily on the basis of her strong disagreement with
the majority concerning the similarity of the two offenses.
PeoPle v. fielDs: poSSible conSequence of reverSal of prior
admitted conviction
In People v. Fields, 2013 IL App (3d) 080829-B, the appel-
late court held that section 115-7.3(b), which allows “evidence
of the defendant’s commission of another offense or offenses”
includes evidence of a prior conviction and permits proof of
the conviction through the submission to the jury of a certied
conviction, thus rejecting the defendant’s contention that such
proof was improper. In Fields, although the prior conviction had
been reversed after the defendant’s conviction in the case at
bar, the appellate court declined to consider the consequence
of the reversal, reasoning that the issue had not been before the
trial court and thus could not be “reviewed,” and that the issue
had to be presented in a postconviction petition. The supreme
court thereafter directed the court to vacate its judgment and
to resolve the issue. In the decision that followed in People v.
Fields, 2013 IL App (3d) 080829-C, the court rst noted that
“the reversal of an underlying prior conviction admitted to
show propensity does not result in automatic reversal,” because
it does not qualify as “structural error.” Fields, 2013 IL App (3d)
080829-C, ¶ 21. Focusing on “the lack of direct evidence”
(id. at ¶ 22), that “[t]here were no eyewitnesses or physical
evidence” (id. at ¶ 24), and the emphasis during trial on the
defendant’s prior conviction, one that had been reversed (with
the case subsequently dismissed), the appellate court, with one
justice dissenting, reversed the conviction and remanded the
case to the circuit court.
notice proviSion
Like FRE 413(b), section 115-7.3(d) of the Code of Criminal
Procedure of 1963 has a notice provision. That statute provides
that when “the prosecution intends to offer evidence under this
Section, it must disclose the evidence, including statements of
witnesses or a summary of the substance of any testimony, at a
reasonable time in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown.”
ire 413(b) and Section 115-7.4
In addition to the sex-related offenses listed above, IRE
413(b), consistent with section 115‑7.4 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-7.4; see Appendix B),
extends the admissibility of evidence provided by FRE 413
COMMENTARY CONTINUED
117ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 413
concerning sex offenses, to allow evidence of a non-sex
offense, specically, another offense or offenses of domestic
violence in a prosecution for domestic violence. Note that IRE
404(b) specically refers to the provisions of section 115-7.4
(in addition to those of section 115-7.3) as an exception to the
general rule prohibiting propensity evidence.
In People v. Dabbs, 239 Ill. 2d 277 (2010), the supreme court
held that evidence of the defendant’s domestic violence on his
former wife, evidence admitted during his trial for domestic
violence on his girlfriend, was proper. For an appreciation of
the impact of the Dabbs decision on other-crimes evidence,
see the discussion concerning that decision in the Author’s
Commentary on Ill. R. Evid. 404(b).
ire 413(c) and Section 115-20
IRE 413(c), consistent with section 115-20 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/110-20; see
Appendix C), also broadens the provisions of FRE 413, for it
allows evidence of a prior conviction for domestic battery,
aggravated battery committed against a family or household
member, stalking, aggravated stalking, or violation of an order
of protection “in a later prosecution for any of these types of
offenses when the victim is the same person who was the vic-
tim of the previous offense that resulted in the conviction of the
defendant.” Note, too, that IRE 404(b) specically refers to the
provisions of section 115-20 (as well as those of sections 115-
7.3 and 115-7.4) as an exception to the general rule prohibiting
propensity evidence.
ChaPman and Chambers: liberal application of Section 115-20
In People v. Chambers, 2011 IL App (3d) 090949, the appel-
late court concluded that language in section 115-20 reected
the legislature’s intent to make admissible not only a conviction
for the prior offenses it lists, but also the evidence underlying
the conviction. The court noted that, in any event, section 115-
7.4 specically allows evidence related to a prior domestic
violence offense in a subsequent prosecution for domestic
violence, which was the offense under review in Chambers.
In People v. Chapman, 2012 IL 111896, the supreme court
held that evidence of a prior conviction for domestic battery
was properly admitted in a prosecution for rst-degree murder,
even though murder is not one of the offenses specically listed
in section 115-20. The court held that evidence of the domestic
battery conviction was proper because murder is an offense
incorporated in section 115-20’s language permitting proof of
a prior conviction “in a later prosecution for any of these types
of offenses when the victim is the same person who was the
victim of the previous offense that resulted in the conviction of
the defendant.” Chapman, at ¶ 24 (Emphasis in original).
Note that in People v. Ross, 2018 IL App (2d) 161079, the
appellate court held that Chapman did not address the issue in
the case at bar, where a nonenumerated conviction (battery;
defendant was originally charged with domestic battery but
convicted of battery) was admitted for a similar kind of offense
(murder), whereas Chapman involved an earlier conviction for
an enumerated offense (domestic battery) and a later prosecu-
tion for murder (one of the “types of offenses” to which section
115-20 applies). Nonetheless, the court held that it “need
not resolve the issue, because the other-crimes evidence was
admissible under the common law and section 115-7.4.” Ross,
at ¶ 175.
COMMENTARY CONTINUED
118RULE 414 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 414. Similar Crimes in Child-Molestation
Cases
(a) Permitted Uses. In a criminal case in which a
defendant is accused of child molestation, the court
may admit evidence that the defendant committed any
other child molestation. e evidence may be consid-
ered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor
intends to oer this evidence, the prosecutor must
disclose it to the defendant, including witnesses’ state-
ments or a summary of the expected testimony. e
prosecutor must do so at least 15 days before trial or at
a later time that the court allows for good cause.
(c) Eect on Other Rules. is rule does not limit
the admission or consideration of evidence under any
other rule.
(d) Denition of “Child” and “Child Molesta-
tion.” In this rule and Rule 415:
(1) “child” means a person below the age of 14;
and
(2) “child molestation” means a crime under
federal law or under state law (as “state” is dened in
18 U.S.C. § 513) involving:
(A) any conduct prohibited by 18 U.S.C.
chapter 109A and committed with a child;
(B) any conduct prohibited by 18 U.S.C.
chapter 110;
(C) contact between any part of the defen-
dant’s body—or an object—and a child’s genitals
or anus;
(D) contact between the defendant’s genitals
or anus and any part of a child’s body;
(E) deriving sexual pleasure or gratication
from inicting death, bodily injury, or physical
pain on a child; or
(F) an attempt or conspiracy to engage in
conduct described in subparagraphs (A)–(E).
[FRE .]
[See Author’s Commentary below for statutory
counterpart.]
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
119ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 414
Author’s Commentary on an Illinois Statute that is a Counterpart to Fed. R. Evid. 414
FRE 414 was not adopted, but the same subject matter is
addressed by statute.
Although Illinois has not adopted FRE 414, section 115-7.3
of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
7.3), which is discussed above in relation to IRE 413 and is in
the appendix at Appendix A, applies to prosecutions for preda-
tory criminal sexual assault of a child (see 720 ILCS 5/11-1.40,
which addresses sexual offenses on a victim under the age of
13), and applies as well as to other sexual offenses that may
have children as victims.
FRE 414, which addresses only child molestation cases, is
identical to the provisions of FRE 413, except that the latter
applies to sexual offenses generally. The provisions of IRE 413
and section 115-7.3 of the Code of Criminal Procedure, which
are explained above, apply equally to adults and to children
who are victims of sexual offenses.
COMMENTARY
120RULE 415 ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 415. Similar Acts in Civil Cases Involving
Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim
for relief based on a party’s alleged sexual assault or
child molestation, the court may admit evidence that
the party committed any other sexual assault or child
molestation. e evidence may be considered as pro-
vided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends
to oer this evidence, the party must disclose it to
the party against whom it will be oered, including
witnesses’ statements or a summary of the expected
testimony. e party must do so at least 15 days before
trial or at a later time that the court allows for good
cause.
(c) Eect on Other Rules. is rule does not limit
the admission or consideration of evidence under any
other rule.
[FRE .]
[ere is no statutory counterpart to the federal rule
in Illinois.]
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 415
Illinois has no counterpart to FRE 415 in civil cases.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
121ARTICLE V. PRIVILEGES RULE 501
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE V. PRIVILEGES
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Rule 501. Privilege in General
e common law—as interpreted by United States
courts in the light of reason and experience—governs a
claim of privilege unless any of the following provides
otherwise:
· the United States Constitution;
· a federal statute; or
· rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding
a claim or defense for which state law supplies the rule
of decision.
Rule 501. General Rule
Except as otherwise required by the Constitution
of the United States, the Constitution of Illinois, or
provided by applicable statute or rule prescribed by
the Supreme Court, the privilege of a witness, person,
government, state, or political subdivision thereof shall
be governed by the principles of the common law as
they may be interpreted by Illinois courts in the light of
reason and experience.
Author’s Commentary on Fed. R. Evid. 501
Neither the federal rules nor federal statutes provide rules
for privilege. Given these absences, two United States Supreme
Court opinions are relevant for providing meaningful historical
background for FRE 501, as well as clarity on how and why
the common law is used as the foundation for determining the
adoption of testimonial privileges.
The Court’s earlier decision in Trammel v. United States, 445
U.S. 40 (1980), which addresses a revised adoption of marital
privilege, provides as follows:
The Federal Rules of Evidence acknowledge the
authority of the federal courts to continue the evo-
lutionary development of testimonial privileges in
federal criminal trials “governed by the principles
of the common law as they may be interpreted ...
in the light of reason and experience.” Fed. Rule
Evid. 501. (Citation). The general mandate of Rule
501 was substituted by the Congress for a set of
privilege rules drafted by the Judicial Conference
Advisory Committee on Rules of Evidence and
approved by the Judicial Conference of the United
States and by this Court. That proposal dened
nine specic privileges, including a husband-wife
privilege which would have codied the Hawkins
rule and eliminated the privilege for condential
marital communications. See proposed Fed. Rule
Evid. 505. In rejecting the proposed Rules and
enacting Rule 501, Congress manifested an afr-
mative intention not to freeze the law of privilege.
Its purpose rather was to “provide the courts with
the exibility to develop rules of privilege on a
case-by-case basis,” (Citations). Trammel, 445 U.S.
at 47-48.
Later, Jaffee v. Redmond, 518 U.S. 1 (1996), which adopted
the privilege protecting condential communications between
a psychotherapist and her patient, cites Trammel and expands
on its rationale:
Rule 501 of the Federal Rules of Evidence autho-
rizes federal courts to dene new privileges by
interpreting “common law principles ... in the light
of reason and experience.” The authors of the Rule
borrowed this phrase from our opinion in Wole v.
United States, 291 U.S. 7, 12 (1934), which in turn
122RULE 501 ARTICLE V. PRIVILEGES
referred to the oft-repeated observation that “the
common law is not immutable but exible, and by
its own principles adapts itself to varying condi-
tions.” (Citations). The Senate Report accompany-
ing the 1975 adoption of the Rules indicates that
Rule 501 “should be understood as reecting the
view that the recognition of a privilege based on a
condential relationship ... should be determined
on a case-by-case basis.” (Citations). The Rule thus
did not freeze the law governing the privileges of
witnesses in federal trials at a particular point in
our history, but rather directed federal courts to
“continue the evolutionary development of testi-
monial privileges.” (Citations).
The common-law principles underlying the rec-
ognition of testimonial privileges can be stated
simply. “For more than three centuries it has now
been recognized as a fundamental maxim that
the public ... has a right to every man’s evidence.
When we come to examine the various claims of
exemption, we start with the primary assumption
that there is a general duty to give what testimony
one is capable of giving, and that any exemptions
which may exist are distinctly exceptional, being
so many derogations from a positive general
rule.” (Citations). Exceptions from the general rule
disfavoring testimonial privileges may be justied,
however, by a “public good transcending the
normally predominant principle of utilizing all
rational means for ascertaining truth.” (Citations).
Jaffee, 518 U.S. at 8-9.
COMMENTARY CONTINUED
Author’s Commentary on Ill. R. Evid. 501
Except for variances to distinguish Illinois proceedings
from federal proceedings, IRE 501 is identical to its federal
counterpart, before the latter’s amendment solely for stylistic
purposes effective December 1, 2011. But in contrast to fed-
eral proceedings, which do not have statutory privilege rules,
there are numerous Illinois statutes that provide testimonial
privilege. Also, as in federal proceedings, there are numerous
common-law privileges.
effect of privilegeS on fact-finding proceSS
In determining the evidentiary application of both statutory
and common-law privileges, it is prudent to consider the
observation made by the Illinois Supreme Court in Brunton
v. Kruger, 2015 IL 117663, that “[t]he existence of a statutory
privilege of any kind necessarily means that the legislature has
determined that public policy trumps the truth-seeking function
of litigation in certain circumstances,” as well as its citing with
approval the appellate court’s statement in FMC Corp. v. Liberty
Mutual Insurance Co., 236 Ill. App. 3d 355, 358 (1992), that
“[i]n considering any privilege, we must be mindful that priv-
ileges, by their nature, tend to adversely affect the fact-nding
process and often stand as a barrier against illumination of
truth. Therefore, privileges are not to be expansively construed
because they are exceptions to the general duty to disclose
during discovery.” Brunton v. Kruger, 2015 IL 117663, ¶ 64.
Note also that “federal courts apply the federal common
law of evidentiary privileges—not state-granted privileges—to
claims *** that arise under federal law.” Hamdan v. Indiana
University Health North Hospital, Inc, 880 F.3d 416, 421 (7th
Cir. 2018) (holding that the Seventh Circuit “has declined to
recognize a federal peer-review privilege, reasoning that the
need for truth outweighs the state’s interest in supplying the
privilege”). Thus, “[a] party arguing for a new evidentiary
privilege under Rule 501 must confront the general obstacle
that evidentiary privileges are disfavored because they impede
fact-nding by excluding relevant information.” Id. at 8, citing
University of Pennsylvania v. EEOC, 493 U.S. 182, at 189
(1990), and United States v. Nixon, 418 U.S. 683, 710 (1974)
(privileges “are in derogation of the search for the truth”).
exampleS of illinoiS Statutory privilegeS
There are numerous Illinois statutory privileges. Examples
of some of the more commonly invoked statutory privileges
include:
123ARTICLE V. PRIVILEGES RULE 501
• marital privilege (725 ILCS 5/115-16; 735 ILCS
5/8-801) (see the discussion under the headings
related to Marital Privilege below);
• physician-patient privilege (735 ILCS 5/8-802) (see
the discussion under the heading of Physician‑
Client Privilege infra);
• privilege for statements made by a victim of a
sexual offense to rape crisis personnel (735 ILCS
5/8-802.1);
• privilege for statements made by victims of violent
crimes to counselors of such victims (735 ILCS
5/8-802.2);
• informant’s privilege (735 ILCS 5/8-802.3 and Ill.
S. Ct. R. 412(j)(ii));
• clergy-penitent privilege (735 ILCS 5/8-803) (see
Doe v. The Catholic Diocese of Rockford, 2015 IL
App (2d) 140618, where plaintiff sought the iden-
tity of the writer of an allegedly defamatory letter,
the appellate court held that defendant could not
invoke the privilege because the letter writer had
not made a “confession or admission,” as required
by the statute; see also People v. Peterson, 2017
IL 120331, where the supreme court held that
statements made by the defendant’s missing fourth
wife to a clergyman were not subject to the privi-
lege because the clergyman’s church had no rules
regarding counseling sessions and there were no
practices or precepts or customs of his church to
which he was bound with respect to the conden-
tiality of counseling sessions);
• union agent and union member privilege (735
ILCS 5/8-803.5);
• condential advisor (725 ILCS 5/804, added by
P.A. 99-826, eff. 8/21/15);
• reporter’s privilege (735 ILCS 5/8-901) (for a case
involving a defendant’s effort to divest a reporter
of the reporter’s privilege, see People v. McKee,
2014 IL App (3d) 130696, where the appellate
court reversed the trial court’s divestiture order on
the basis that the identity of the reporter’s source
was not relevant to a fact of consequence in the
rst-degree murder allegations in the case);
• voter’s privilege (735 ILCS 5/8-910);
• language interpreter’s privilege (735 ILCS 5/8-911);
• interpreter for the deaf and hard of hearing privi-
lege (735 ILCS 5/8-912);
• mental health therapist-patient privilege (740 ILCS
110/10) See Reda v. Advocate Health Care, 199
Ill. 2d 47 (2002) (in applying the privilege, holding
that plaintiff “did not place his mental condition
at issue merely by claiming damages for what is a
neurological injury, i.e., stroke and/or other brain
damage,” and noting that neurological injury is
not synonymous with psychological damage and
neurological injury does not directly implicate
psychological damage). For two appellate court
decisions discussing the breadth of condentiality
under the Mental Health and Developmental
Disabilities Condentiality Act (740 ILCS 110/1, et
seq.), see Stuckey v. The Renaissance at Midway,
2015 IL App (1st) 143111), and Garton v. Pfeifer,
2019 IL App (1st) 180872. See also Sparger v.
Yamini, 2019 IL App (1st) 180566 (discussing Reda
and distinguishing the decisions in D.C. v. S.A.,
178 Ill. 2d 551 (1997), and Phifer v. Gingher, 2017
Ill. App. (3d) 160170, in holding that the trial court
erred in compelling a neuropsychologist’s report,
because plaintiff did not see the neuropsychologist
for psychological issues but rather for a neurolog-
ical injury, she did not place her mental condition
in issue by claiming brain damage). For a recent
decision allowing the identity of a patient’s mental
health providers and the discovery of her psychi-
atric records, in the context of a wrongful death
action based on suicide, see Doe v. Great America
LLC, 2021 IL App (2d) 200123, ¶ 21 (holding,
“Unlike cases such as Reda and Sparger, which
involved a brain injury without an intervening
suicide, a suicide directly implicates a psycholog-
ical condition or psychological damage. ‘Bereft of
COMMENTARY CONTINUED
124RULE 501 ARTICLE V. PRIVILEGES
reason’ and ‘insanity’ implicate a psychological
injury.”). Though related to FRE 501 and based
solely on common law, see Jaffee v. Redmond,
518 U.S. 1 (1996) (explaining the rationale for and
recognizing, under FRE 501, the appropriateness
of a privilege protecting condential communica-
tions between a psychotherapist (a licensed clini-
cal social worker) and her patient, thus protecting
communications between them from compelled
disclosure in a federal civil action).
• Medical Studies Act (735 ILCS 8-2101, et seq.;
see Eid v. Loyola University Medical Center, 2017
IL App (1st) 143967 (holding that the conden-
tiality provisions of the Act apply to information
generated by a designee of the peer review com-
mittee for the use of the peer review committee
in the course of internal quality control); see also
Mnookin v. Northwest Community Hospital, 2018
IL App (1st) 171107 (in medical malpractice and
wrongful death action, citing the Act and decisions
in reversing friendly contempt for hospital’s refusal
to tender court-ordered discovery).
Additional statutory privileges are contained within chapter
225 of the Illinois Compiled Statutes, entitled “Professions,
Occupations and Business Operations.” They include:
• clinical psychologist privilege (225 ILCS 15/5);
• licensed clinical social worker or licensed social
worker privilege (225 ILCS 20/16(1)(b));
• licensed marriage and family therapist privilege
(225 ILCS 55/70);
• licensed professional counselor or licensed clin-
ical professional counselor privilege (225 ILCS
107/75);
• licensed genetic counselor privilege (225 ILCS
135/90);
• licensed or registered certied public accountant
privilege (225 ILCS 450/27; see Brunton v. Kruger,
2015 IL 117663 (holding that the privilege, as an
attribute of the accounting profession, is that of the
accountant and not the client).
• restorative justice practices privilege (section
804.5 of the Code of Civil Procedure (735 ILCS
5/804.5), which was adopted in Public Act
102-0100, effective July 15, 2021) (providing a
privilege for participation in restorative justice
practices by ensuring that anything said or done
during the practice, or in anticipation of or as a
follow-up to the practice, is privileged and may
not be used in any future proceeding unless the
privilege is waived by the informed consent of the
party or parties covered by the privilege).
See also Razavi v. Walkuski, 2016 IL App (1st) 151435
(holding that the absolute privilege that applies to reporting
crimes to law enforcement applies to a college student’s report
to campus security of on-campus sexual violence); and the
later decision in Razavi v. School of the Art Institute of Chicago,
2018 IL App (1st) 171409 (offering rationale for again holding
that absolute privilege applies where college students report
on-campus sexual violence to campus security).
exampleS of common-law privilegeS
The attorney‑client privilege is an example of a com-
mon-law privilege — the oldest of the privileges for con-
dential communications — one that is also prescribed by the
supreme court through the Rules of Professional Conduct (RPC
Rule 1.6). See also Swidler & Berlin v. United States, 524 U.S.
399 (1998) (holding the death of the holder of the privilege
does not terminate the attorney-client privilege). See also Ill.
S. Ct. R. 412(j)(ii) and Ill. S. Ct. R. 201(b)(2), which prohibit
discovery of privileged information, including matters subject
to the attorney-client privilege and work‑product protection.
See also the denitions for both “attorney-client privilege” and
“work-product protection” provided in IRE 502(f).
For an example of the non-application of the attorney-cli-
ent privilege, see People v. Peterson, 2017 IL 120331, ¶ 63,
where the supreme court held that statements made by the
defendant’s missing fourth wife to an attorney who declined to
represent her were not privileged and were properly admitted
into evidence.
For a comprehensive analysis of the adoption and application
in Illinois of the protection provided by the “common‑interest
COMMENTARY CONTINUED
125ARTICLE V. PRIVILEGES RULE 501
COMMENTARY CONTINUED
doctrine” (also referred to as the “common-interest exception”
or “common-interest rule”), an analysis that is a must-read for
its rationale and application of the doctrine in both civil and
criminal cases, see Selby v. O’Dea, 2017 IL App (1st) 151572.
In that decision, the appellate court explicitly adopted the
common-interest doctrine for Illinois as an exception to the
waiver of privilege rule (and not as a separate “privilege”), thus
protecting attorney-client privilege and attorney work-product
protection for parties with a common interest in litigation
against a third party, where privileged information is shared
between parties with a common interest in the litigation.
In considering the scope of the protection provided by the
common-interest doctrine, Selby addressed two issues, the rst
of which was “whether the parties sharing a ‘common interest’
must be perfectly aligned in all respects or whether it sufces
that they share some common interest in defeating a litigation
opponent.” Selby, at ¶ 77. Based on a review of numerous
authorities, the appellate court held that perfect alignment is
not required; the parties need not be aligned on every issue.
The second issue addressed was “which statements, pre-
cisely, are covered by the common-interest exception to the
waiver rule.” Id. In answering that question, the appellate
court listed the following scenarios where the protection of the
common-interest doctrine applies:
• Communications between attorneys representing
parties with common interests;
• Communications between a party and another
party’s attorney;
• Communications between a party and that party’s
attorney with the other party’s attorney;
• Communications during a joint conference involv-
ing the parties and their attorneys.
The appellate court listed those scenarios because they were
relevant to the case under review. Not addressed, because the
issue was not relevant to the case, was “whether the com-
mon-interest doctrine protects communications directly from
one party to the other party in common interest,” where no
attorney is present. Id. at ¶ 97. That question awaits separate
appellate review.
Selby is mandatory reading for the issues described above,
but also for its discussion of issues not resolved and for guid-
ance concerning the need for a privilege log under Ill. S. Ct. R.
201(n).
For the “attorney litigation privilege,” see three relevant
appellate court decisions that provide discussions concerning
that privilege: Bedin v. Northwestern Memorial Hospital, 2021
IL App (1st) 190723; Scarpelli v. McDermott Will & Emory LLP,
2018 IL App (1st) 170874; and O’Callaghan v. Satherlie, 2015
IL App (1st) 142152.
exceptionS to attorney-client privilege
There are exceptions to the attorney-client privilege. One of
them is the common-interest doctrine, usually invoked to pre-
serve privilege (see the discussion of Selby above) but also used
to defeat a claim of privilege where parties who once shared a
common interest (usually between insurer and insured) become
hostile. In Illinois, the leading case on that exception is Waste
Management, Inc. v. International Surplus Lines Insurance Co.,
144 Ill. 2d 178 (1991) (in addition to holding that a coopera-
tion agreement in the insurance contract imposed a duty on the
insureds to assist in the conduct of litigation, holding that an
insured and an insurer shared a common interest in defending
against litigation, so that the attorney-client privilege did not
bar discovery by the insurer concerning communications or
documents of the insured and its counsel, which were created
in defense of two previously settled lawsuits, in a subsequent
coverage dispute relating to one of those suits).
In its most recent decision involving the common interest
doctrine, the supreme court held, in Robert R. McCormick
Foundation v. Arthur J. Gallagher Risk Management Services,
Inc., 2019 IL 123936, that there was no insurer-insured rela-
tionship between the parties where the plaintiffs brought suit
against an insurance broker based on the broker’s negligence in
failing to procure appropriate insurance coverage. The supreme
court distinguished its holding in Waste Management, where it
had expanded the common interest doctrine “to the situation
involving two parties who do not consult the same lawyer but
who are in a ‘special relationship’ so that they could be treated
as if they did retain the same counsel.” McCormick Foundation,
at ¶ 30. Unlike in Waste Management, where it had held that
126RULE 501 ARTICLE V. PRIVILEGES
COMMENTARY CONTINUED
the insurer and insured had a special relationship and were in
privity of contract and the insurer had a duty to indemnify its
insured for the insured’s negligence, the court reasoned that
here the insured sought indemnication not for the insurer’s
negligence but for the negligence of its broker. Id. at ¶¶ 36-37.
The supreme court therefore reversed the appellate court’s
afrmance of the circuit court’s order compelling the insureds
to produce discovery of privileged information.
In Ross v. Illinois Central Railroad Company, 2019 IL App
(1st) 181579, an appeal from a good faith nding that a set-
tlement between the plaintiff and his doctor against whom the
defendant had led a contribution claim, the defendant made
discovery requests seeking all communications between the
plaintiff, his doctor, and their attorneys. Although noting that
the plaintiff and the doctor had not entered any agreements
relating to the defense of the case, the circuit court ruled that
they shared common interests, and it denied the requested
discovery. In reversing the circuit court’s ruling, the appellate
court held:
“Even when a common interest exists between
parties, it is clear to us that the client must, at the
time of disclosure, have an agreement with the
receiving party that that party will treat the infor-
mation as privileged. A disclosure in the absence
of such an agreement is simply inconsistent with
a desire to maintain the condentiality of the
privileged communication.” Ross, at ¶ 44.
An exception to the waiver of attorney-client privileged
information is addressed in the Center Partners decision, pro-
vided in the Author’s Commentary on Ill. R. Evid. 502, where
subject-matter waiver of attorney-client communications
is discussed in the context of both judicial and extrajudicial
proceedings.
Another — the crime-fraud exception — is discussed in
People v. Radojcic, 2013 IL 114197, where the supreme court
held that the State had met its evidentiary burden for the
application of the crime-fraud exception to the attorney-client
privilege. The court initially noted that it had earlier recognized
the essential elements for the creation and application of the
attorney-client privilege:
“(1) Where legal advice of any kind is sought (2)
from a professional legal adviser in his capacity
as such, (3) the communications relating to that
purpose, (4) made in condence (5) by the client,
(6) are at his instance permanently protected (7)
from disclosure by himself or by the legal adviser,
(8) except the protection be waived.” Radojcic, at
¶ 39.
The court then went on to explain the rationale for the
application of the crime-fraud exception:
“The rationale underlying the crime-fraud excep-
tion is intimately connected to the nature of the
attorney-client relationship. As we explained
in [In re] Decker, [153 Ill. 2d 298 (1992)], ‘in
seeking legal counsel to further a crime or fraud,
the client does not seek advice from an attorney
in his professional capacity.’ [Citation]. The client
either conspires with the attorney or deceives the
attorney. In the former case, the privilege will not
apply because it cannot be the attorney’s business
to further any criminal object. In the latter case,
the privilege does not apply because the attorney’s
advice has been obtained by a fraud.” Radojcic,
at ¶ 42.
Note that, as the supreme court pointed out, the crime-
fraud exception is focused on the intent of the client, and not
the legitimacy of the services provided by the attorney, who
might be completely innocent of wrongdoing. Id. at ¶ 49. The
court pointed out that the holding in Mueller Industries, Inc.
v. Berkman, 399 Ill. App. 3d 456 (2010), was awed because
it required a prima facie showing before the trial court could
conduct an in camera hearing (Radojcic, at ¶ 62). The court
also held that an in camera hearing is not indispensable to a
showing that the crime-fraud exception applies. Id. at ¶ 60.
Finally, and perhaps most important, the supreme court pro-
vided this standard in determining whether the crime-fraud
exception applies:
“[T]he proponent of the crime-fraud exception
must present evidence from which a prudent
person would have a reasonable basis to suspect
127ARTICLE V. PRIVILEGES RULE 501
COMMENTARY CONTINUED
(1) the perpetration or attempted perpetration of a
crime or fraud, and (2) that the communications
were in furtherance thereof.” Id. at ¶ 44, quoting
Decker, 153 Ill. 2d at 322 (internal quotation
marks omitted).
For a recent application of the crime-fraud exception, see
In re Marriage of Stinauer, 2021 IL App (3d) 190692 (holding
that the trial court erred in denying respondent’s section
2-1401 hearing without holding an evidentiary hearing, where
respondent sufciently alleged the crime-fraud exception to the
attorney-client privilege).
Secret-Surveillance-location privilege
Another example of a common-law privilege, one recog-
nized by the appellate court as a qualied privilege in the
context of a criminal case, is the secret surveillance location
privilege. To invoke the privilege, the State has the burden
of proof that the surveillance location was either on private
property with permission of the owner or in a useful location
whose utility would be compromised by disclosure. See
People v. Price, 404 Ill. App. 3d 324 (2010) (holding that the
privilege “is based on and evolved from the related ‘informant’s
privilege,’” and that its purpose is “to protect sources from
retaliation and to encourage their continuing cooperation with
law enforcement”).
See also People v. Reed, 2013 IL App (1st) 113465 (dis-
cussing the privilege and holding that the trial court did not
abuse its discretion in precluding disclosure of the ofcer’s
location); People v. Flournoy, 2016 IL App (1st) 142356 (noting
the need for a transcript of the in camera hearing and reversing
application of the surveillance privilege because the trial court
abused its discretion in not considering factors that would have
weighed in favor of disclosure of the surveillance location);
In re Manuel M., 2017 IL App (1st) 162381 (holding that the
respondent’s rights to effective cross-examination, confronta-
tion, and a public trial were violated where the trial court held
an in camera hearing with only the police ofcer and state’s
attorney and allowed the state’s attorney to argue outside the
presence of the respondent and his counsel); People v. Jackson,
2017 IL App (1st) 151779 (noting that the appellate court “has
been less than clear about whether it is permissible for the
State to appear and participate in the in camera hearing” (id. at
¶ 33), and citing Manuel in holding it was error for the defense
to be excluded while the State was present for the in camera
hearing); People v. Palmer, 2017 IL App (1st) 151253 (trial court
erred in denying surveillance location where ofcer testied
he was concealed in a vacant lot by vegetation and defendant
properly sought to learn the location to determine whether the
vegetation also impaired ofcer’s ability to observe defendant’s
conduct); People v. Sanders, 2019 IL App (1st) 160718 (empha-
sizing that only the trial court, the relevant police ofcer, and
the court reporter participated in the in camera proceeding,
thus distinguishing the case from In re Manuel M. and Jackson
and also distinguishing the facts in Palmer and pointing out the
trial court’s considerable leeway in defendant’s cross-exam-
ination of the ofcer, holding the trial court properly denied
revelation of the surveillance location).
marital privilege StatuteS
There are separate Illinois statutes on marital privilege for
criminal and civil cases. The statute for criminal cases is in
section 115-16 of the Criminal Code of Procedure of 1963 (725
ILCS 5/115-16); the statute for civil cases is in section 8-801 in
the Code of Civil Procedure (735 ILCS 5/8-801). With slightly
different phrasing, both statutes identically provide that hus-
band and wife may testify for or against each other, provided
that neither may testify as to any communication or admission
made by either of them to the other or as to any conversation
between them during marriage, except...
What follows the ellipses differs. In the criminal statute, the
exception is:
“in cases in which either is charged with an offense
against the person or property of the other, in case
of spouse abandonment, when the interests of
their child or children or of any child or children in
either spouse’s care, custody, or control are directly
involved, when either is charged with or under
investigation for an offense under Section 11-1.20,
11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,
12-14.1, 12-15, or 12-16 of the Criminal Code of
1961 or the Criminal Code of 2012 and the victim
is a minor under 18 years of age in either spouse’s
128RULE 501 ARTICLE V. PRIVILEGES
care, custody, or control at the time of the offense,
or as to matters in which either has acted as agent
of the other.”
In the civil statute, the exception is:
“in actions between such husband and wife, and
in actions where the custody, support, health
or welfare of their children or children in either
spouse’s care, custody or control is directly in
issue, and as to matters in which either has acted
as agent for the other.”
Not surprisingly, the exceptions provided in the criminal
statute relate to criminal behavior against the spouse or chil-
dren for whom they are responsible, while those in the civil
statute relate to matters involving actions between the spouses
(primarily related to dissolution of the marriage), children for
whom they are responsible, or where one spouse acts as the
agent of the other.
Though not provided by statute, the federal marital privilege
is provided in Trammel v. United States, 445 U.S. 40 (1980) (in
modifying its previous decision in Hawkins v, United States,
358 U.S. 74 (1958), providing historical context for the privi-
lege, and in explaining and applying FRE 501, ruling that the
marital privilege is “modied so that the witness-spouse alone
has a privilege to refuse to testify adversely; the witness may
be neither compelled to testify nor foreclosed from testifying.”)
deciSionS on marital-communication privilege: sanDers, trzeCiak,
and appellate court deciSionS
In People v. Sanders, 99 Ill. 2d 262 (1983), the supreme
court refused to extend the marital privilege to conversations
between parent and child.
In People v. Trzeciak, 2013 IL 114491, the supreme court
reversed the decision of a majority panel of the appellate court,
which had held that the marital privilege, provided for in crimi-
nal cases by section 115-16 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/115-16), required the exclusion of the
testimony of the defendant’s battered wife about threats made
to her by her husband against her and the murder victim. The
supreme court rst noted that, for a communication between
spouses to fall within the marital privilege, two elements must
be satised:
“First, the communication must be an utterance or
other expression intended to convey a message.
Second, the message must be intended by the
communicating spouse to be condential in that it
was conveyed in reliance on the condence of the
marital relationship.” Trzeciak, at ¶ 44.
The court concluded that the testimony of the defendant’s
wife concerning his conduct (beating her, tying her up, and
other activity) was not barred by the marital privilege. Trzeciak,
at ¶ 48. The court then concluded that the defendant’s threats
were not condential communications, citing numerous cases
from other jurisdictions that placed special emphasis on the
mutual trust and condence in the marriage relationship. Three
justices specially concurred in the judgment, dissenting on the
denial of reconsideration, based on their view that prior Illinois
decisions relating to condential communications justied
the court’s holding, without the need to rely on out-of-state
decisions that placed special emphasis on the health and status
of the marriage.
In People v. Garner, 2016 IL App (1st) 141583, ¶¶ 37-46,
the appellate court also addressed issues related to the mar-
ital communication privilege in section 115-16 of the Code
of Criminal Procedure. In Garner, the defendant, who was
charged with murdering her six-year-old daughter after a tele-
phone conversation with her husband about the status of their
marriage, contended that the trial court had improperly admit-
ted the testimony of her husband about their conversation—a
conversation which formed the basis of the State’s evidence
regarding the defendant’s motive for killing their daughter.
Construing the applicable language of the statutory exception,
“when the interests of their child or children or of any child or
children in either spouse’s care, custody, or control are directly
involved,” and other parts of the statute, the appellate court
rejected the defendant’s contentions that the conversation
was not admissible because the conversation was not about
their daughter and it did not concern their child’s interests.
The court reasoned that it “is evident from the plain text of
the exceptions, which by their terms apply in ‘cases,’ ‘matters,’
and, as particularly relevant here, ‘when,’ due to the nature of
COMMENTARY CONTINUED
129ARTICLE V. PRIVILEGES RULE 501
COMMENTARY CONTINUED
the proceeding at hand, the ‘interests’ of the spouse’s children
are ‘directly involved.’” Garner, at ¶ 41.
In People v. Gliniewicz, 2018 IL App (2d) 170490, the State
sought to introduce email and text messages between the
now-deceased husband and his now-indicted wife, messages
that were taken from the deceased husband’s cell phone and
that allegedly contained evidence of the criminal conduct of
both. Before remanding the case to the circuit court for the
State’s reopening of proofs on the State’s contention that the
defendant had waived the privilege after the defendant’s suc-
cessful motion in limine, the appellate court made three rulings
relevant to the marital-communication privilege of section 115-
16. First, in applying the “third-party exception” to the privilege
in People v. Simpson, 68 Ill. 2d 276 (1977), the court held that
in this case the privilege had not been waived because no
other party was present for or heard or learned of the commu-
nications, even by interception or through loss or misdelivery.
Second, even though a “joint-criminal-enterprise” exception
has been adopted in other jurisdictions, neither earlier appel-
late court decisions nor the General Assembly has adopted
the exception in Illinois. Third, the appellate court refused to
expand the “agency” exception to the privilege because the
indictment alleged that the husband and the defendant were
co-conspirators. As noted, the case was remanded for evidence
on the State’s contention that the privilege had been waived.
For an appellate court decision that provides the rationale
for afrming the admission of two statements made by the
defendant to her estranged husband about her boyfriend’s
having killed the deceased in a rst degree murder case, see
People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶¶ 85-93.
For a relevant discussion concerning the separate issue
of witness competency or witness disqualication, see the
Author’s Commentary on Ill. R. Evid. 601.
phySician-patient privilege
Section 8-802 of the Code of Civil Procedure (735 ILCS
5/8-802) provides the statutory basis for the physician-patient
privilege, which did not exist under common law. The supreme
court decision in Palm v. Holocker, 2018 IL 123152, provides a
succinct summary of the statute and its rationale:
“Section 8-802 of the Code of Civil Procedure
provides that ‘[n]o physician or surgeon shall be
permitted to disclose any information he or she
may have acquired in attending any patient in a
professional character, necessary to enable him or
her professionally to serve the patient.’ The statute
then lists 14 situations in which the privilege does
not apply. The physician-patient privilege exists
to encourage disclosure between a doctor and a
patient and to protect the patient from invasions
of privacy. The purpose of the privilege is to
encourage full disclosure of all medical facts by
the patient in order to ensure the best diagnosis
and outcome for the patient. The legislature has
recognized that patients have an interest in main-
taining condentiality in their medical dealings
with physicians.” Palm, at ¶ 16 (citations omitted).
Palm was a personal injury case, involving a defen-
dant-driven vehicle striking the plaintiff-pedestrian. The issue
on appeal was from a contempt order imposed on the defense
attorney for refusing to answer two interrogatory questions,
which the plaintiff alleged were based on a Facebook posting
that the defendant was legally blind and had a few other colli-
sions. One of the interrogatories was for the name and address
of any physician or health care professional who performed
an eye-examination on the defendant in the last ve years,
and another interrogatory was for the name of a physician or
other health care professional who examined and/or treated the
defendant within the last ten years. In determining whether the
imposed contempt was proper, Palm’s specic focus was on
the meaning of “an issue” in section 8-802(4), the statute that
provides that the physician-patient privilege does not apply in
any action “wherein the patient’s physical or mental condition
is an issue.”
The appellate court had held that, because the defendant
had not put his health in issue and the plaintiff could not waive
someone else’s privilege, the section 8-802(4) exception did
not apply. Noting, however, that the plaintiff had not alleged
the defendant’s vision problems as a cause of the accident and
that the defendant had not invoked vision problems in defense,
130RULE 501 ARTICLE V. PRIVILEGES
COMMENTARY CONTINUED
and noting further the “legislature’s intent in enacting section
8-802(4) is not clear, and the cases interpreting that section are
inconsistent in applying it,” the supreme court stated:
“we determine that the issue of whether a plaintiff
may put a defendant’s medical condition in issue
for purposes of section 8-802(4) is ultimately not
presented by the facts of this case and that the
appellate court said more than it needed to in
resolving the appeal. We need not resolve whether
a plaintiff may put a defendant’s medical condition
at issue so as to waive a defendant’s privilege under
section 8-802(4) because, on the record before us,
plaintiff has not put defendant’s medical condition
at issue.” Id. at ¶ 24.
Thus, Palm afrmed the decision of the appellate court,
but made it clear that, because the “plaintiff had not put
defendant’s medical condition at issue, it was not necessary
for the appellate court to decide that issue.” Id. at ¶ 34. And it
urged “the legislature to address section 8-802(4) and to make
its intentions clear. Specically, the legislature should clarify
how something becomes ‘an issue’ for purposes of this section,
whether one party may put another party’s physical or mental
condition at issue, and if the rule is any different for civil and
criminal cases.” Id.
In addition to leaving open for now the specic question
of whether a party can place in issue another party’s medical
condition, another holding in Palm should be noted. The defen-
dant had answered another interrogatory requesting informa-
tion about “any medical and/or physical condition which
required a physician’s report and/or letter of approval in order
to drive.” In connection with this interrogatory, the supreme
court reversed the order of the appellate court that required the
plaintiff to relinquish the defendant’s medical records that he
had received from the Secretary of State. The court reasoned
that the defendant had answered the interrogatory and did not
assert a privilege. It further reasoned that the defendant had
obtained his doctor’s report “not for the purposes of receiving
treatment but for maintaining his driving privileges.” Id. at ¶ 32.
It therefore held that the plaintiff was entitled to use the record
obtained from the Secretary of State.
In People v. Bons, 2021 IL App (3d) 180464, a prosecution
for predatory criminal sexual assault of a ve-year-old girl who
was diagnosed with the sexually transmitted disease of chla-
mydia, the trial court admitted evidence, over the defendant’s
objections, that the defendant had been tested for and also
received a diagnosis of chlamydia. The issue for the appellate
court concerned whether the defendant’s diagnosis was prop-
erly admitted, as contended by the State, as an exception to
the physician-patient privilege under sections 8-802(4) and
8-802(7) of the Code of Civil Procedure (735 ILCS 5/8-802(4)),
(7)). Noting that several appellate decisions allowed the 8-802(4)
exception, the court distinguished those cases because they
included, as an element of the offense, the defendant’s physical
or mental state. But this case, the appellate court held, did not
contain such an element. Applying the Palm rationale, the court
held that the 8-802(4) exception did not apply in this case,
and the evidence of the defendant’s chlamydia diagnosis was
therefore improperly admitted. Regarding the section 8-802(7)
exception to the physician-client exception—an exception that
applies to “actions, civil or criminal, arising from the ling of
a report in compliance with the [Abuse and Neglected Child
Reporting] Act”—the appellate court noted “there is no indica-
tion that defendant’s medical records regarding his chlamydia
diagnosis and treatment arose from the DCFS investigation and
report.” Bons, at ¶ 44 (emphasis by the court). Thus, the excep-
tion did not apply under section 8-802(7), and the defendant’s
diagnosis was improperly admitted under that section as well.
Notwithstanding those holdings, the court applied harmless
error in afrming the defendant’s conviction.
See also Doe v. Weinzweig, 2015 IL App (1st) 133424-B,
¶¶ 29-32 (discussing the privilege and holding, as other cases
had, that the physician-patient privilege does not apply to exam-
inations ordered under Supreme Court Rule 215); and People v.
Quigley, 2018 IL App (1st) 172560 (in an appeal from the denial
of defendant’s petition to rescind statutory summary suspension
of his driver’s license on the ground that a police ofcer did not
have reasonable grounds to believe that defendant was driving
while impaired, because test results were not admitted into
evidence, the appellate court declined to determine whether
hospital test results related to defendant’s blood alcohol would
131ARTICLE V. PRIVILEGES RULE 501
COMMENTARY CONTINUED
be admissible as substantive evidence in a statutory summary
suspension hearing under section 501.4 or section 501.4-1(a)
of the Illinois Vehicle Code (the court noting that no published
Illinois decision has addressed this exact question), but in
applying the exception to the physician-patient privilege in
section 8-802(9) of the Code of Civil Procedure, holding that
a police ofcer’s testimony regarding the blood alcohol test
results learned from a physician was properly admitted and the
trial court properly considered those test results in determining
whether reasonable grounds existed to believe that defendant
had been under the inuence of alcohol while he was driving).
132RULE 502 ARTICLE V. PRIVILEGES
Rule 502. Attorney-Client Privilege and Work
Product; Limitations on Waiver
e following provisions apply, in the circum-
stances set out, to disclosure of a communication or
information covered by the attorney-client privilege or
work-product protection.
(a) Disclosure Made in a Federal Proceeding or to
a Federal Oce or Agency; Scope of a Waiver. When
the disclosure is made in a federal proceeding or to a
federal oce or agency and waives the attorney-client
privilege or work-product protection, the waiver extends
to an undisclosed communication or information in a
federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communi-
cations or information concern the same subject
matter; and
(3) they ought in fairness to be considered
together.
(b) Inadvertent Disclosure. When made in a
federal proceeding or to a federal oce or agency, the
disclosure does not operate as a waiver in a federal or
state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to
rectify the error, including (if applicable) following
Federal Rule of Civil Procedure 26(b)(5)(B).
(c) Disclosure Made in a State Proceeding. When
the disclosure is made in a state proceeding and is not
the subject of a state-court order concerning waiver,
the disclosure does not operate as a waiver in a federal
proceeding if the disclosure:
(1) would not be a waiver under this rule if it had
been made in a federal proceeding; or
(2) is not a waiver under the law of the state
where the disclosure occurred.
(d) Controlling Eect of a Court Order. A federal
court may order that the privilege or protection is not
Rule 502. Attorney-Client Privilege and Work
Product; Limitations on Waiver
e following provisions apply, in the circum-
stances set out, to disclosure of a communication or
information covered by the attorney-client privilege or
work-product protection.
(a) Disclosure Made in an Illinois Proceeding or to
an Illinois Oce or Agency; Scope of a Waiver. When
the disclosure is made in an Illinois proceeding or to an
Illinois oce or agency and waives the attorney-client
privilege or work-product protection, the waiver extends
to an undisclosed communication or information in
any proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communi-
cations or information concern the same subject
matter; and
(3) they ought in fairness to be considered
together.
(b) Inadvertent Disclosure. When made in an
Illinois proceeding or to an Illinois oce or agency, the
disclosure does not operate as a waiver in any proceed-
ing if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to
rectify the error, including (if applicable) following
Supreme Court Rule 201(p).
(c) Disclosure Made in a Federal or Another
State’s Proceeding or to a Federal or Another State’s
Oce or Agency. When the disclosure is made in a
federal or another state’s proceeding or to a federal or
another state’s oce or agency and is not the subject
of a court order concerning waiver, the disclosure does
not operate as a waiver in an Illinois proceeding if the
disclosure:
(1) would not be a waiver under this rule if it had
been made in an Illinois proceeding; or
ILLINOIS RULES OF EVIDENCEFEDERAL RULES OF EVIDENCE
133ARTICLE V. PRIVILEGES RULE 502
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
waived by disclosure connected with the litigation
pending before the court—in which event the disclo-
sure is also not a waiver in any other federal or state
proceeding.
(e) Controlling Eect of a Party Agreement. An
agreement on the eect of disclosure in a federal pro-
ceeding is binding only on the parties to the agreement,
unless it is incorporated into a court order.
(f) Controlling Eect of this Rule. Notwith-
standing Rules 101 and 1101, this rule applies to state
proceedings and to federal court-annexed and federal
court-mandated arbitration proceedings, in the circum-
stances set out in the rule. And notwithstanding Rule
501, this rule applies even if state law provides the rule
of decision.
(g) Denitions. In this rule:
(1) “attorney-client privilege” means the protec-
tion that applicable law provides for condential
attorney-client communications; and
(2) “work-product protection” means the pro-
tection that applicable law provides for tangible
material (or its intangible equivalent) prepared in
anticipation of litigation or for trial.
(2) is not a waiver under the law governing the
federal or state proceeding where the disclosure
occurred.
(d) Controlling Eect of a Court Order. An Illi-
nois court may order that the privilege or protection is
not waived by disclosure connected with the litigation
pending before the court—in which event the disclo-
sure is also not a waiver in any other proceeding.
(e) Controlling Eect of a Party Agreement. An
agreement on the eect of disclosure in an Illinois pro-
ceeding is binding only on the parties to the agreement,
unless it is incorporated into a court order.
(f) Denitions. In this rule:
(1) “attorney-client privilege” means the protec-
tion that applicable law provides for condential
attorney-client communications; and
(2) “work-product protection” means the pro-
tection that applicable law provides for tangible
material (or its intangible equivalent) prepared in
anticipation of litigation or for trial.
COMMENTARY
Author’s Commentary on Ill. R. Evid. 502
adoption of ire 502 and Supreme court rule 201(p)
When the Illinois evidence rules were codied, a counter-
part to FRE 502 was not adopted. It was thought that Illinois
law on the effect of disclosure of privileged communications
was deemed to be relatively undeveloped, and the subject was
therefore considered not ripe for codication. After its initial
adoption of codied evidence rules, however, the supreme
court requested that the Committee submit to the court’s Rules
Committee a proposed evidence rule on the subject of FRE 502,
as well as a clawback rule to accompany the proposed rule.
The Committee then submitted the proposed rules to the Rules
Committee, which approved both rules and submitted them to
the supreme court, which in turn issued an order on November
28, 2012, adopting IRE 502 effective January 1, 2013.
On the same date, the supreme court issued another order,
also effective January 1, 2013, amending Ill. S. Ct. R. 201 by
adding subparagraph (p). Newly added Supreme Court Rule
201(p), referenced in IRE 502(b)(3), is designed to complement
IRE 502 through the clawback procedures that occur in the
event of the inadvertent disclosure of privileged or protected
information. The rule is substantially identical to Federal Rule
of Civil Procedure 26(b)(5)(B), which similarly complements
the federal rule and is referenced in FRE 502(b)(3). The added
supreme court rule reads as follows:
134RULE 502 ARTICLE V. PRIVILEGES
Supreme court rule 201(p). aSSerting privilege or work
product following diScovery diScloSure.
If information inadvertently produced in discovery
is subject to a claim of privilege or of work-product
protection, the party making the claim may notify
any party that received the information of the
claim and the basis for it. After being notied, each
receiving party must promptly return, sequester, or
destroy the specied information and any copies;
must not use or disclose the information until the
claim is resolved; must take reasonable steps to
retrieve the information if the receiving party dis-
closed the information to third parties before being
notied; and may promptly present the informa-
tion to the court under seal for a determination of
the claim. The producing party must also preserve
the information until the claim is resolved.
rule 4.4(b) of the illinoiS ruleS of profeSSional conduct of
2010
Note that, consistent with the goals of IRE 502(b), Rule
4.4(b) of the Illinois Rules of Professional Conduct of 2010
provides: “A lawyer who receives a document relating to the
representation of the lawyer’s client and knows that the docu-
ment was inadvertently sent shall promptly notify the sender.”
SubdiviSionS of ire 502
IRE 502, like its federal counterpart, addresses what disclo-
sures of attorney-client-privileged or work-product-protected
communications or information are required under certain
circumstances where there is either an intentional or an inad-
vertent disclosure.
Rule 502(a) addresses subject-matter waiver. It provides
that, in an Illinois proceeding, the disclosure of privileged or
protected information does not result in subject-matter waiver
unless the waiver is intentional and the disclosed and undis-
closed communications about the same-subject matter “ought
in fairness to be considered together.”
Rule 502(b) addresses inadvertent disclosure. It provides
that a party may avoid waiver by showing that the disclosure
made in an Illinois proceeding was inadvertent and that the
“holder of the privilege” (who is not necessarily the disclos-
ing party) took reasonable steps to prevent disclosure and to
promptly rectify the error—including following Supreme Court
Rule 201(p) where the inadvertent disclosure occurred during
discovery.
For an example of a Seventh Circuit Court of Appeals
decision addressing and applying FRE 502(b) which, like IRE
502(b), governs inadvertent disclosures of privileged commu-
nications or information, see Carmody v. Board of Trustees of
the University of Illinois, 893 F.3d 397, 404-407 (7th Cir. 2018)
(holding that the district court properly ruled that plaintiff could
not offer as evidence a document protected by attorney-client
privilege that the defense had inadvertently turned over to
plaintiff in discovery).
Rule 502(c) addresses a disclosure that has been made
in a federal or another state’s proceeding. It provides that a
foreign-court disclosure that is “not the subject of a court order
concerning waiver” does not result in a waiver in an Illinois
proceeding if: (1) it would not be a waiver if it had occurred
during an Illinois proceeding, or (2) did not constitute a waiver
in the foreign court where the disclosure occurred. Note that
the rule infers that if the foreign court has issued an order
concerning waiver, that order applies. Note also that obtaining
a court order under Rule 502(d)—where the disclosure is not
subject to a foreign court order concerning waiver—obviates
the need to establish either of the two numbered conditions to
avoid waiver.
Rule 502(d) addresses the controlling effect of an Illinois
court order on the waiver of a privilege or protection. It pro-
vides that an Illinois court may issue an order that protects
from disclosure privileged or protected matter pending before
the court that issued the order, while also ensuring that any
disclosure does not result in a waiver in any other proceeding.
This rule allows the parties to seek a court order that species
the standard of care that must be followed to avoid waiver of
the privilege or protection. It allows even an order that provides
that no disclosure—regardless of the standard of care—results
in a waiver. This important subdivision of IRE 502 provides for
a court order that would obviate many disputes related to the
waiver of attorney-client privilege or work-product protection,
as indicated in the nal sentence related to Rule 502(c) in the
COMMENTARY CONTINUED
135ARTICLE V. PRIVILEGES RULE 502
paragraph above, and in the nal sentence related to Rule
502(e) in the paragraph below.
Rule 502(e) addresses the controlling effect of a party agree-
ment on the waiver of a privilege or protection. It provides that
an agreement between the parties on the effect of disclosure in
an Illinois proceeding binds only the parties to the agreement,
“unless it is incorporated into a court order.” This rule validates
agreements that occur in cases involving the discovery of
millions of paper documents or the enormous storage of infor-
mation in databases, thus allowing, for example, “claw-back
agreements,” where the parties agree to exchange information
with only a limited privilege review, with the producing party
able to “claw back” a produced privileged document; or
“quick peek agreements,” where the producing party allows
the requesting party to inspect documents that have not been
reviewed for privilege, with the producing party able to then
review and retain, on the basis of privilege, documents that the
requesting party seeks to have produced. Such agreements are
designed to ensure that the disclosure of privileged or protected
information does not result in the waiver of the privilege or
protection. Note, however, the advisability of having a court
order under Rule 502(d), which would bind even those who are
not parties to the agreement.
Note that FRE 502(f) has no Illinois counterpart. The federal
rule has no application to Illinois proceedings.
Illinois’ IRE 502(f) provides the same denitions that are
provided in FRE 502(g). IRE 502(f)(2) provides a denition of
“work-product protection” that should be considered in con-
junction with Supreme Court Rule 201(b)(2), which states that
“[m]aterial prepared by or for a party in preparation for trial is
subject to discovery only if it does not contain or disclose the
theories, mental impressions, or litigation plans of the party’s
attorney.”
frcp 16(b)(3)(b)(iv) and frcp 26(f)(3)(d) aS they relate to
fre 502
Note that the permitted contents of scheduling orders
under Federal Rule of Civil Procedure 16(b)(3)(B)(iv) may:
“include any agreements the parties reach for asserting claims
of privilege or of protection as trial-preparation material after
information is produced, including agreements reached under
Federal Rule of Evidence 502.”
Note also that under Federal Rule of Civil Procedure 26(f)
(3)(D), “[a] discovery plan must state the parties’ views and
proposals on:” *** “(D) any issues about claims of privilege
or of protection as trial-preparation materials, including—if the
parties agree on a procedure to assert these claims after pro-
duction—whether to ask the court to include their agreement
in an order under Federal Rule of Evidence 502.”
Center Partners: Subject matter waiver in judicial and
extrajudicial proceedingS
Note that IRE 502 addresses disclosures made in the context
of a “proceeding” or to an “ofce” or an “agency.” It says noth-
ing about disclosures made in extrajudicial settings generally.
That issue was addressed by the Illinois Supreme Court in
Center Partners, Ltd. v. Growth Head GP, 2012 IL 113107, a
decision issued on November 29, 2012, the day after the court
adopted IRE 502.
In Center Partners, the issue was whether the disclosure
of attorney-client-privileged information during business
negotiations with third parties constituted a waiver not only
of the matters discussed at the negotiations, but also a broader
subject matter waiver of related undisclosed information. In
ordering the discovery of numerous attorney-client-privileged
documents on the basis of the doctrine of subject-matter-waiver
of related undisclosed information, the circuit court had con-
cluded that the doctrine applied to extrajudicial proceedings.
The appellate court agreed. Both courts reasoned that there
was no distinction between disclosures made in court-related
proceedings and those made out-of-court.
On review, however, the supreme court reversed the
judgments of the circuit and appellate courts. In so doing, it
acknowledged the propriety of subject matter waiver in the
context of judicial proceedings:
“Illinois has long recognized the doctrine of
subject matter waiver, with this court holding that
when a client voluntarily testies and waives the
privilege, such waiver ‘extends no further than the
subject-matter concerning which testimony had
been given by the client.‘ (Emphasis added [by the
COMMENTARY CONTINUED
136RULE 502 ARTICLE V. PRIVILEGES
court].) People v. Gerold, 265 Ill. 448, 481 (1914).
Our appellate court has rened and elaborated on
subject matter waiver:
‘Although voluntary disclosure of condential
information does not effectively waive an attor-
ney-client privilege as to all other non-disclosed
communications that may have taken place
[citation], where a client reveals portions of her
conversation with her attorney, those revelations
amount to a waiver of the attorney-client privilege
as to the remainder of the conversation or com-
munication about the same subject matter.’ In re
Grand Jury January 246, 272 Ill. App. 3d 991, 997
(1995) (citing People v. O’Banner, 215 Ill. App. 3d
778, 793 (1991)).’
“The purpose behind the doctrine of subject matter
waiver is to prevent partial or selective disclosure
of favorable material while sequestering the unfa-
vorable. [Citation] *** Courts have characterized
this reasoning as the “sword” and the “shield”
approach, in that a litigant should not be able to
disclose portions of privileged communications
with his attorney to gain a tactical advantage in
litigation (the sword), and then claim the privilege
when the opposing party attempts to discover
the undisclosed portion of the communication
or communications relating to the same subject
matter.” Center Partners, at ¶¶ 38-39.
Having recognized the propriety of subject matter waiver in
judicial proceedings, the supreme court reversed the judgments
of the circuit and appellate courts, concluding that extrajudicial
disclosures to third parties of attorney-client communications
does not waive the attorney-client privilege over private,
undisclosed attorney-client communications concerning the
same subject matter. The court held that “subject matter waiver
does not apply to disclosures made in an extrajudicial context
when those disclosures are not thereafter used by the client
to gain a tactical advantage in litigation.” Center Partners, at
¶ 76.
COMMENTARY CONTINUED
137ARTICLE VI. WITNESSES RULE 601
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE VI. WITNESSES
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Author’s Commentary on Ill. R. Evid. 601
The rst part of IRE 601 is virtually identical to the rst sen-
tence of the federal rule before the latter’s amendment solely
for stylistic purposes effective December 1, 2011. The second
sentence of pre-amended (and current) FRE 601 is not codied
as unnecessary in Illinois state proceedings.
recognition of Statutory proviSionS
The Illinois rule is adjusted to accommodate a statute such
as the Dead-Man’s Act (735 ILCS 5/8-201) which, as pointed
out by the appellate court in State Farm Mutual Automobile
Insurance Co. v. Plough, 2017 IL App (2d) 160307, ¶ 5 is
“rooted in English common law, [and] has been an evidentiary
rule in Illinois in one form or another since 1867.” The relevant
portion of the Dead-Man’s Act reads as follows:
“In the trial of any action in which any party sues or
defends as the representative of a deceased person or
person under a legal disability, no adverse party or per-
son directly interested in the action shall be allowed to
testify on his or her own behalf to any conversation with
the deceased or person under legal disability or to any
event which took place in the presence of the deceased
or person under legal disability, except [for the instances
specied by the following subsections of the Act].” 735
ILCS 5/8-201.
The Act therefore renders incompetent as a witness an
“adverse party or person directly interested in the action,”
under the circumstances listed.
deciSionS applying the dead-man’S act
For an illustrative application of the Dead-Man’s Act, see
In re Estate of Crawford, 2019 IL App (1st) 182703, where
the claimant led a claim against the estates of his son and
daughter-in-law who had died in an automobile accident. His
claim sought reimbursement of $223,529.59, which he alleged
to have loaned to the decedents over a 12-year period. The
independent administrator of both estates obtained summary
judgment based on his argument that the Dead-Man’s Act
prohibited the claimant, who was an adverse party directly
interested in the action, from providing evidence that he had
made any payments to the decedents or that any payments
were loans and not gifts. The appellate court afrmed the grant
of summary judgment based on the Dead-Man’s Act. The court
also afrmed the trial court’s barring admission of the claimant’s
handwritten log of the money provided the decedents, which
the claimant contended provided an exception to the prohi-
bition of the Dead-Man’s Act by virtue of section 8-401 of the
Act (735 ILCS 5/8-401), which allows admissibility of account
books and records. The court’s afrmance was premised on the
fact that the log concerned the claimant’s personal transactions
and was not created in the context of a business transaction.
In Larry L. Hood, Executor of the Estate of Carl Maxey Hood,
Deceased v. George Leighty, Executor of the Estate of Edwrd T.
Hampton, Deceased, 2020 IL App (5th)190338, a negligence
action for damages from a vehicular accident, where both
drivers survived but died from causes unrelated to the accident
Rule 601. General Rule of Competency
Every person is competent to be a witness, except
as otherwise provided by these rules, by other rules
prescribed by the Supreme Court, or by statute.
Rule 601. Competency to Testify in General
Every person is competent to be a witness unless these
rules provide otherwise. But in a civil case, state law
governs the witness’s competency regarding a claim or
defense for which state law supplies the rule of decision.
138RULE 601 ARTICLE VI. WITNESSES
before the ling of the complaint, the circuit court granted
summary judgment to the defendant based primarily on the
Dead-Man’s Act. In reversing the grant of summary judgment,
the appellate court held that statements of the deceased drivers
to police ofcers did not violate the Dead-Man’s Act and were
admissible “provided such statements are otherwise admissi-
ble.” Id. at ¶ 33. The court reasoned that the statements made to
police by defendant’s decedent were admissible as statements
by a party opponent (see IRE 801(d)(2)(A)), and statements
made to police by plaintiff’s decedent immediately after the
accident were admissible as excited utterances (see IRE 803(2)).
The court reversed summary judgment and remanded the case
for further proceedings.
See also Peacock v. Waldeck, 2016 IL App (2d) 151043 (in
a personal injury action alleging that defendant rear-ended
plaintiff’s car, before defendant died from a cause unrelated
to the accident, defendant answered the complaint admitting
every allegation (including rear-ending plaintiff’s car), but
stating she had no knowledge whether plaintiff was stopped
at a red light as alleged in plaintiff’s complaint, summary judg-
ment for the defendant was properly granted because plaintiff
could not testify about having stopped at a red light, and other
causes—such as an abrupt stop by plaintiff, road conditions,
or plaintiff’s possible mechanical problems—were possible but
could not be provided).
See, too, State Farm Mutual Automobile Insurance Co. v.
Plough, 2017 IL App (2d) 160307 (in this jury trial of a subro-
gation case, holding that the testimony of the driver of a car that
collided with the car of the defendant, who was under a legal
disability at the time of trial, was erroneously admitted, but
because that testimony was merely cumulative of the properly
admitted testimony of a police ofcer who testied that the
defendant had admitted to him that the light changed to red
as he approached the intersection and that he tried to stop but
lost control of his car and hit the plaintiff’s car, the improperly
admitted testimony was duplicative of the properly admitted
testimony, and thus the judgment for the plaintiff-subrogee was
afrmed).
See also Spencer v. Wayne, 2017 IL App (2d) 160801. In
that case, the plaintiff suffered injury from allegedly slipping
on a mat while exiting a car in the garage of the now-deceased
defendant. Summary judgment was granted in favor of the
deceased defendant’s estate. The issue for the appellate court
was whether the now-deceased defendant was in a position
to see what caused the plaintiff to slip, which was dispositive
of whether the Dead-Man’s Act had been properly applied by
the circuit court. The plaintiff contended that the now-deceased
defendant was seated in her car when the accident occurred,
and thus she could not see what caused the plaintiff to trip.
However, pointing out that at her deposition the now-deceased
defendant had “answered ‘yes’ when asked if she saw plaintiff
fall” (Spencer, at ¶ 19), the appellate court held that the circuit
court had properly ruled that plaintiff’s testimony was inadmis-
sible under the Dead-Man’s Act, and that summary judgment
was therefore properly entered in favor of the defendant’s estate.
In In re Estate of Weber, 2021 IL App (2d) 200354, a case
involving an attorney’s petition to obtain fees from the estate of
the now-deceased wife in dissolution of marriage proceedings,
the appellate court reversed the circuit court’s denial of attorney
fees based on the circuit court’s determination that the attorney
had a conict of interest in representing both the now-deceased
person and her caregiver. The appellate court held that the
trial court improperly applied the Illinois Rules of Professional
Conduct, which simply provides a framework for the ethical
practice of law, in determining the conict of interest, because
that determination was solely for the Attorney Registration
and Disciplinary Commission (ARDC). The appellate court
reasoned that the attorney was prevented by the Dead-Man’s
Act from testifying about the deceased person giving him her
consent to concurrent representation. Pointing out that the
Dead-Man’s Act “bars only that evidence the decedent could
have refuted” (Estate of Weber, at ¶ 26), the court noted that,
in an ARDC disciplinary proceeding, however, “the personal
representative would be neither prosecuting or defending; thus,
the Dead-Man’s Act would not apply and the attorney could
testify regarding the decedent’s giving of informed consent.”
Id. at ¶ 28.
For a decision applying the exception to the Dead-Man’s Act
found in section 8-201(d) (735 ILCS 5/8-201(d)), which reads,
“No person shall be barred from testifying as to any fact relating
COMMENTARY CONTINUED
139ARTICLE VI. WITNESSES RULE 601
COMMENTARY CONTINUED
to the heirship of a decedent,” see In re Estate of McDonald,
2021 IL App (2d) 191113, ¶¶ 73-86, petition for leave to appeal
allowed on May 26, 2021, Docket No. 126956, where the
appellate court discussed the legislative and judicial history of
that section, in holding that the trial court had erred in barring
the respondent’s testimony concerning her marriage to the
decedent, who died intestate, as it related to her consequent
right to heirship of his estate. As noted, the supreme court has
granted PLA in McDonald, so it will have the nal word on the
issue.
StatuteS and caSeS on competency of a witneSS
For a statute providing criteria for judging witness compe-
tency in a criminal case, see section 115-14 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-14). Note that
the statute provides that “[e]very person, irrespective of age, is
qualied to be a witness and no person is disqualied to testify
to any matter,” unless he or she is “[i]ncapable of expressing
himself or herself concerning the matter so as to be understood”
or “[i]ncapable of understanding the duty of a witness to tell the
truth.”
Note, too, that the statute’s presumption of competency
places the burden of proof on the party challenging compe-
tency. See section 115-14(c) and People v. Hoke, 213 Ill. App.
3d 263, 272 (1991) (holding that it was the defendant’s “burden
to establish that the children who testied were incapable of
understanding the duty of a witness to tell the truth”), and Harris
v. Thompson, 698 F.3d 609 (7th Cir. 2012) (in Illinois prosecu-
tion, trial court erred in requiring defendant, as proponent of
witness, to prove that ve-year-old witness was competent to
testify). For an appellate court decision discussing the burden
of proof and both the rule and section 115-14, see People v.
Jackson, 2015 IL App (3d) 140300, ¶¶ 43-49.
See also section 115-16 of the same Code (725 ILCS 5/115-
16) as well as section 8-101 of the Code of Civil Procedure
(735 ILCS 5/8-101), both of which make admissible evidence
from an interested witness or a witness with a criminal con-
viction, such status being relevant only to the weight of the
evidence. Both the second paragraph of section 115-16 of the
Code of Criminal Procedure and section 8-801 of the Code
of Civil Procedure (735 ILCS 5/8-801) address what is and is
not admissible under the spousal privilege. See also People
v. Garcia, 97 Ill. 2d 58, 74 (1983) (degree of intelligence and
understanding of a child, and not the child’s chronological age,
determines capacity to testify as a witness).
For an appellate court decision discussing various issues
concerning the competency of a witness under IRE 601, see
People v. Jackson, 2015 IL App (3d) 140300, ¶¶ 42-49.
140RULE 602 ARTICLE VI. WITNESSES
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence
is introduced sucient to support a nding that the
witness has personal knowledge of the matter. Evidence
to prove personal knowledge may, but need not, consist
of the witness’ own testimony. is rule is subject to the
provisions of Rule 703, relating to opinion testimony
by expert witnesses.
Rule 602. Need for Personal Knowledge
A witness may testify to a matter only if evidence is
introduced sucient to support a nding that the wit-
ness has personal knowledge of the matter. Evidence to
prove personal knowledge may consist of the witness’s
own testimony. is rule does not apply to a witness’s
expert testimony under Rule 703.
Author’s Commentary on Ill. R. Evid. 602
IRE 602 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See People v. McCarter, 385 Ill. App. 3d 919, 934 (2008)
(“the testimony of a lay witness must be conned to statements
of fact of which the witness has personal knowledge,” quoting
People v. Brown, 200 Ill. App. 3d 566, 578 (1990)). See also IRE
701, which provides the standards of admissibility for opinions
or inferences of lay witnesses, one of which is that they are
“rationally based on the perception of the witness.” See also
People v. Enis, 139 Ill. 2d 264 (1990) (prosecutor’s cross-exam-
ination of defendant on matters about which defendant lacked
knowledge was improper).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
141ARTICLE VI. WITNESSES RULE 603
Rule 603. Oath or Armation
Before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath
or armation, administered in a form calculated to
awaken the witness’ conscience and impress the witness’
mind with the duty to do so.
Rule 603. Oath or Armation to Testify Truthfully
Before testifying, a witness must give an oath or
armation to testify truthfully. It must be in a form
designed to impress that duty on the witness’s con-
science.
Author’s Commentary on Ill. R. Evid. 603
IRE 603 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. For a statute that provides comparable requirements, see
section 115-14(b)(2) of the Code of Criminal Procedure of 1963
(725 ILCS 5/115-14(b)(2): disqualifying a person from being a
witness if that person is “[i]ncapable of understanding the duty
of a witness to tell the truth”).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
142RULE 604 ARTICLE VI. WITNESSES
Rule 604. Interpreters
An interpreter is subject to the provisions of these
rules relating to qualication as an expert and the
administration of an oath or armation to make a true
translation.
Rule 604. Interpreter
An interpreter must be qualied and must give an
oath or armation to make a true translation.
Author’s Commentary on Ill. R. Evid. 604
IRE 604 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. In Illinois, interpreters are provided for by statute in
civil cases (735 ILCS 5/8-1401); in criminal cases (725 ILCS
140/0.01 et seq.); and for deaf persons (735 ILCS 5/8-1402).
The Illinois Supreme Court Language Access Policy is a
nine-page document that is accessible on the Illinois Supreme
Court website under the “Other Language Resources” tab. It is
necessary reading for judges and those involved in proceedings
where language interpretation is necessary. Its preamble states
that it is offered to provide “a blueprint for the courts of Illinois
to develop a unied approach for the provision of statewide
language access services.” Relevant to IRE 604, section VI of the
Policy, entitled “An Oath Requirement for Interpreters” (which
includes the provided italicized comment), reads as follows:
Before beginning to interpret in any legal proceeding,
or before interpreting for several legal proceedings in
one day, every unregistered interpreter shall swear or
afrm in open court that he or she will make a true and
impartial interpretation using his or her best skill and
judgment in accordance with the standards prescribed
by law and the ethics of the interpreter profession and
that he or she will, in the English language, fully and
accurately, repeat the statements of such person to the
court before such proceeding takes place, and will repeat
all statements made during such proceeding from English
to sign language or a Limited English Procient Person’s
native language fully and accurately.
Comment: Interpreters listed on the Administrative
Ofce of the Illinois Courts’ registry shall sign a written
oath that can be maintained on le by the local court.
Unregistered interpreters may sign a written oath to keep
on le at the local courts’ discretion. This simplies the
court’s inquiries in open court during procedural hear-
ings. It is recommended, however, that an oath be read
and sworn to in open court in all proceedings conducted
before a jury.
Although not related to “interpreters,” People v. Betance-
Lopez, 2015 IL App (2d) 130521 presents an interesting analysis
related to the trial court’s use, during a bench trial, of a tran-
script of a recorded interview of the defendant, with questions
in English, translated into Spanish, and answered in Spanish,
with the Spanish portions translated into English. Though, in
such instances, the recording is deemed to be the substantive
evidence, the appellate court approved the trial court’s use of
and reliance on the transcript containing the translations.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
143ARTICLE VI. WITNESSES RULE 605
Rule 605. Competency of Judge as Witness
e judge presiding at the trial may not testify in
that trial as a witness. No objection need be made in
order to preserve the point.
Rule 605. Judge’s Competency as a Witness
e presiding judge may not testify as a witness at
the trial. A party need not object to preserve the issue.
Author’s Commentary on Ill. R. Evid. 605
IRE 605 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See People v. Ernest, 141 Ill. 2d 412, 420 (1990) (uphold-
ing contempt nding on attorney who issued a subpoena for
the discovery deposition of a judge presiding over a matter in
which the attorney was appearing as counsel). See also Canon
3C(1)(e)(iv) of the Code of Judicial Conduct (Ill. S. Ct. R. 63C(1)
(e)(iv)) (requiring judicial disqualication where the judge “is
likely to be a material witness in the proceeding”).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
144RULE 606 ARTICLE VI. WITNESSES
Rule 606. Competency of Juror as Witness
(a) At the Trial. A member of the jury may not
testify as a witness before that jury in the trial of the
case in which the juror is sitting. If the juror is called
so to testify, the opposing party shall be aorded an
opportunity to object out of the presence of the jury.
(b) Inquiry Into Validity of Verdict or Indict-
ment. Upon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to any matter
or statement occurring during the course of the jury’s
deliberations or to the eect of anything upon that
or any other juror’s mind or emotions as inuencing
the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes
in connection therewith. But a juror may testify (1)
whether any extraneous prejudicial information was
improperly brought to the jury’s attention, (2) whether
any outside inuence was improperly brought to bear
upon any juror, or (3) whether there was a mistake in
entering the verdict onto the verdict form. A juror’s
adavit or evidence of any statement by the juror may
not be received concerning a matter about which the
juror would be precluded from testifying.
Rule 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness
before the other jurors at the trial. If a juror is called
to testify, the court must give a party an opportunity to
object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Ver-
dict or Indictment.
(1) Prohibited Testimony or Other Evi-
dence. During an inquiry into the validity of a
verdict or indictment, a juror may not testify about
any statement made or incident that occurred during
the jury’s deliberations; the eect of anything on that
juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. e
court may not receive a juror’s adavit or evidence
of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about
whether:
(A) extraneous prejudicial information was
improperly brought to the jury’s attention;
(B) an outside inuence was improperly
brought to bear on any juror; or
(C) a mistake was made in entering the verdict
on the verdict form.
Author’s Commentary on Ill. R. Evid. 606(a)
IRE 606(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
In Schaffner v. Chicago & North Western Transportation.
Co., 129 Ill. 2d 1 (1989), during the testimony of an expert
witness, two jurors were allowed to hold a bicycle’s front wheel
assembly in order to feel the gyroscopic force produced by the
spinning wheel. The supreme court said this about that activity:
“The use of jurors as assistants or subjects in eviden-
tiary demonstrations of evidence at trial may have the
effect of converting the participant into a witness for the
party conducting the test. The juror may acquire knowl-
edge that is not directly available to the other jurors, and
opposing counsel is unable to cross-examine him on his
experience. These concerns militate against the involve-
ment of jurors in evidentiary demonstrations.” Schaffner,
129 Ill. 2d at 30.
People v. Holmes, 69 Ill. 2d 507 (1978), has limited rele-
vance to the rule—limited because the jurors involved were
not actual witnesses. There, several jurors went to a shoe store
to investigate shoe heels after police testimony regarding a heel
print, attributed to that of the defendant, was found at the crime
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
145ARTICLE VI. WITNESSES RULE 606
COMMENTARY CONTINUED
Author’s Commentary on Fed. R. Evid. 606(b)
See Tanner v. U.S., 483 U.S. 107 (1987) (noting that “Federal
Rule of Evidence 606(b) is grounded in the common-law rule
against admission of jury testimony to impeach a verdict and
the exception for juror testimony relating to extraneous inu-
ences,” and holding that juror intoxication is not an “outside
inuence” about which jurors may testify to impeach their
verdict).
See also United States v. Roy, 819 F.3d 998 (7th Cir. 2016),
which illustrates the discretion afforded the trial court and the
difculty of challenging a jury verdict absent external inu-
ence. Also, see United States v. Daniels, 803 F.3d 335 (7th Cir.
2015) (after a jury verdict against two defendants was returned
and the jury was polled, a juror later in the day expressed
reservations and told a court staff member that she felt bullied
into making the decision and she later left a voicemail message
for the court saying that she wanted to change her vote because
she felt bullied and railroaded during the jury deliberation
process and that she could not live with the verdict she handed
down, holding that, because there was no evidence of any
external inuence on the juror, no hearing was required and
the judgment was afrmed).
See, too, Krik v. Exxon Mobil Corporation, 870 F.3d 669, (7th
Cir. 2017), where the 7th Circuit found no basis for reversing
the district court’s nding that no prejudice had occurred as
a result of a defense investigator’s interview of a friend of a
juror about the friend’s birthday party that was attended by the
juror and about which the juror had expressed uncertainty as
to whether the plaintiff had attended. But the court gave a stern
admonition that “investigating a sitting juror is fraught with
danger” (id. at 681), because of juror perceived intimidation
or harassment. The court stated: “We do not condone such
behavior and would encourage, as the district court proposed,
that such a practice be evaluated by the court’s rules committee
or chief judge.” Id.
Finally, see the Author’s Commentary on Ill. R. Evid. 606(b),
just below, for the discussion of the United States Supreme
Court decision in Pena-Rodriguez v. Colorado, which provided
an exception to the no-impeachment rule for juror racial bias.
deciSionS related to the polling of jurorS
Although it is not specically addressed in Rule 606(b),
United States v. Lowe, 2 F.4th 652 (7th Cir. 2021), provides
noteworthy information related to the polling of jurors. In that
case, the defendant sought reversal of his criminal conviction
based on an “equivocal” answer about his individual verdict in
jury polling. The juror’s response to the district court’s question
was “Yes. Barely.” In response to the court’s query—“You said
yes?”—“the juror said, “Yes ma’am.” After the court entered the
verdict, the defendant asked for a mistrial based on the jurors’
not having reached a unanimous verdict and also asked that the
juror be questioned “outside the presence of the other jurors to
see why he came to a verdict.” Id. 2 F.4th at 655. Both requests
were denied. Construing Federal Rule of Criminal Procedure
31(d), which provides that if a jury poll “reveals a lack of
unanimity, the court may direct the jury to deliberate further
or may declare a mistrial and discharge the jury,” the Seventh
Circuit held that the jury poll did not reveal a lack of unanimity.
It reasoned that the juror’s “yes” answer was unequivocal and
that “barely” merely indicated that “the stated conclusion was
narrowly reached.” Id. 2 F.4th at 658. Moreover, the court
noted, the juror’s afrmative response to the trial court’s fol-
low-up question—”You said yes?”—showed that the trial court
did not just accept the verdict without further inquiry or other
action, and the juror’s “response could not have been clearer.”
Id. 2 F.4th at 659.
Lowe is noteworthy also for its compilation of prior Circuit
decisions that revealed a “lack of unanimity” required by Fed.
R. Crim. P. 31(d). It identies “several exemplar cases in which
jurors’ polling answers did just that” (id. 2F.4th at 658):
scene. The appellate court held that the jurors’ investigation
constituted prejudicial error.
146RULE 606 ARTICLE VI. WITNESSES
COMMENTARY CONTINUED
Author’s Commentary on Ill. R. Evid. 606(b)
IRE 606(b) is identical to FRE 606(b) before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for a couple of minor and irrelevant word
substitutions.
See People v. Holmes, 69 Ill. 2d 507, 516 (1978) (adopting
FRE 606(b) and holding that private investigation by jurors
resulted in prejudicial error); People v. Hobley, 182 Ill. 2d
404 (1998) (noting the general rule that a verdict may not be
impeached by juror testimony or afdavit related to the motive,
method or process by which the jury reached its verdict, while
holding that juror testimony and afdavits are properly offered
as proof of extraneous inuences on the jury; and analyzing
various allegations of improper jury inuence to determine
whether evidentiary hearings were or were not required).
See also McGee v. City of Chicago, 2012 IL App (1st) 111084
(new trial ordered because circuit court abused its discretion in
denying defendant’s request to voir dire jurors about a juror’s
extraneous Internet research on an issue that had a direct
bearing on the case, i.e., plaintiff’s alleged memory lapses;
reasoning that “the circuit court should have determined what
was brought into the jury room, what it contained, and who
had read it,” in order to determine whether the extraneous
information was prejudicial); People v. Caguana, 2020 IL App
(1st) 180006 (reversing and remanding murder conviction
based on the probable prejudicial impact on two jurors who
extraneously learned of the effort of defendant’s father to solicit
the killing of the two witnesses who identied defendant as the
killer).
The recent decision in Ittersagen v. Advocate Health and
Hospitals Corp., 2021 IL 126507, provides a comprehensive
discussion of what constitutes a juror’s implied bias, highly
relevant in determining whether a prospective juror should be
rejected during voir dire, and the relevant question on appeal
as to whether a juror alleged to have had implied bias was
improperly allowed to serve on the jury.
In Ittersagen, midway through a jury trial, a juror informed
the trial court that he belatedly realized that he had a business
relationship with the defendant corporation, a relationship that
had nothing to do with a medical malpractice suit brought
against the defendant. After questioning the juror and learning
that he had no direct involvement with the defendant, that he
was not a duciary of the defendant, and that he could be fair,
the trial court denied the plaintiff’s motion to strike the juror.
In its review, the supreme court rst cited an early United
States Supreme Court holding that, “[t]he bias of a prospective
juror may be actual or implied; that is, it may be bias in fact or
bias conclusively presumed as [a] matter of law.” In afrming
the decision of the appellate court which had afrmed the trial
I was “[f]orced into” it, “I suppose so,” “I don’t know
how to answer that,” and “I feel like I need more time.”
United States v. Banks, 982 F.3d 1098, 1101 (7th Cir.
2020).
“Yes. With reasonable doubt.” Sincox v. United States,
571 F.2d 876, 877 (5th Cir. 1978).
“It’s my verdict, but I am still in doubt.” United States
v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972).
“Yes, with a question mark.” United States v. McCoy,
429 F.2d 739, 741 (D.C. Cir. 1970).
Lowe also provided a couple of Seventh Circuit decisions
where coercion was determined by the trial court in response
to a juror’s response:
See Banks, 982 F.3d at 1103–05 (nding coercion
where judge “continu[ed] to press [the juror] for a differ-
ent answer,” polled the rest of the jury to expose that juror
as the only holdout, and only then ordered further delib-
erations); [United States v.] Williams, 819 F.3d [1026 (7th
Cir. 2016),] at 1033–35 (nding coercion where a lone
juror unambiguously rejected the verdict but the court
continued to twice poll the remaining jurors and then
instructed the jury “to continue with their deliberations
until they have reached a unanimous verdict”).
147ARTICLE VI. WITNESSES RULE 606
COMMENTARY CONTINUED
court’s ruling, the supreme court cited decisions of the U.S.
Supreme Court and its own decisions, as well as those of the
appellate court, all of which led to the court’s ruling and all of
which is relevant to those who address a contention of a juror’s
implied bias.
In Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct.
855 (2017), two jurors provided afdavits that, during jury
deliberations in that criminal case, another juror had expressed
anti-Hispanic bias toward the defendant and his alibi witness.
Noting the general rule against impeaching a jury verdict under
common law and under codied evidence rules (including
that of Colorado, which is substantially identical to the Illinois
rule), the United States Supreme Court held that the Sixth
Amendment provides an exception to the no-impeachment
rule for addressing racial bias in a jury verdict. The Court held
that, “where a juror makes a clear statement that indicates he or
she relied on racial stereotypes or animus to convict a criminal
defendant, the Sixth Amendment requires that the no-impeach-
ment rule give way in order to permit the trial court to consider
the evidence of the juror’s statement and any resulting denial
of the jury trial guarantee.” Pena-Rodriguez, 137 S. Ct. at 869.
Note that the holding in Pena-Rodriguez cannot be garnered
from the wording of Rule 606(b). But the application of the rule
(in both its federal and Illinois forms), where clear statements
of racial bias are expressed by one or more jurors, violates the
Sixth Amendment’s guarantee of a trial by an impartial jury. In
such cases, the Supreme Court’s interpretation of the constitu-
tion must prevail.
In United States v. Norwood, 982 F.3d 1032 (7th Cir. 2020),
after the return of a guilty verdict, in a phone conversation in
the presence of the defendant and his counsel and the pros-
ecutor, a juror informed the trial court that she felt pressure
from the other jurors to return a guilty verdict. In upholding
the discretion of the trial court in not holding a full hearing
on the validity of the verdict, the Seventh Circuit cited United
States v. Daniels, 803 F.3d 335 (7th Cir. 2015) (see the discus-
sion of Daniels in the Author’s Commentary on Fed. R. Evid.
606(b) just above), pointing out that the juror impeachment
exceptions contained in Rule 606(b) apply only where certain
external pressure is present, and further pointing out that Pena-
Rodriguez requires a clear statement of overt racial bias, which
was not present in this case. Norwood, 982 F.3d at 1055-58,
application of 735 ilcS 5/1106(b)
Although not directly relevant to the rule, the decision in
Bosman v. Riverside Health System, 2016 IL App (3d) 150445,
is worthy of note. In that case, the trial court interviewed a
holdout juror and the foreman of the jury and, after determin-
ing that the holdout juror had withheld information during voir
dire examination, it excused the holdout and replaced her with
an alternate juror. The jury was instructed to begin discussions
anew and it soon reached a verdict. On review, the appellate
court held that the trial court had violated section 2-1106(b)
of the Code of Civil Procedure (735 ILCS 5/2-1106(b)) in not
excusing the alternative jurors when the jury retired to consider
its verdict. Holding that violation of that provision of the statute
does not give rise to reversible error without a showing of prej-
udice, the appellate court held that prejudice was established
here because the jurors knew of the interview of the holdout
juror and “they were then exposed to the outside inuences of
the juror inquiry, which suggested to them the reason for [the
juror’s] eventual replacement.” Bosman, ¶ 26. The judgment
was reversed and the case remanded.
Supreme court reSolution of intradiStrict conflict on the effect
of video played for the jury in the courtroom in the preSence of
judge, attorneyS, and defendant, after commencement of jury
deliberationS
Although not directly related to any codied evidence rule,
it is important to be aware of the Illinois Supreme Court deci-
sion in People v. Hollahan, 2020 IL 125091, and three prior
appellate court split decisions in the Third District resulting in
intradistrict conicts about the propriety of playing a video—at
the request of the jury after jury deliberations had begun—in
the courtroom in the presence of the jury, the judge, the
attorneys, and the defendant. In each case, all those present
merely viewed the requested video; and, consistent with the
judge’s instructions, no comments were allowed. The issue
in each case was rooted in the fundamental tenet that “jury
deliberations shall remain private and secret,” an honored rule
that “is intended to protect the jury from improper inuence.”
People v. Jones, 2019 IL App (3d) 160268, ¶ 23.
148RULE 606 ARTICLE VI. WITNESSES
The rst decision to address the issue was People v. Johnson,
2015 IL App (3d) 130610. Applying the principle that the
appellate court reviews outside jury intrusions for prejudicial
impact, a court majority afrmed the defendant’s conviction,
holding that the record showed no evidence of prejudice . The
dissenting justice contended that the procedure employed by
the trial court presumptively caused a chilling effect on the
jury’s deliberations.
The second decision, which caused the split, was People
v. Hollahan, 2019 IL App (3d) 150556. In that case, authored
by a justice not involved in Johnson but who was joined in
concurrence by the dissenting justice in that earlier case, the
appellate court majority acknowledged that, in addition to
Johnson, two other appellate court districts had declined to nd
reversible error in similar circumstances (i.e., People v. Lewis,
2019 IL App (4th) 150637-B, ¶¶ 97-100 (no error in similar
replaying of 911 tape in courtroom); People v. Rouse, 2014
IL App (1st) 121462, ¶¶ 78-79 (no error in similar courtroom
view of surveillance footage)). But the court majority found
structural error under the second prong of plain error analysis,
holding that the procedure followed by the trial court “clearly
inhibited the jurors’ deliberations and restrained their freedom
of expression and action” (id. at ¶ 21) and “should be deemed
presumptively prejudicial” (id. at ¶ 30). The dissenting justice,
the author of Johnson, invoked that decision in his dissent.
The nal split decision was People v. Jones, 2019 IL App
(3d) 160268. Noting the intradistrict conict, the author of
the majority decision—who authored Johnson and dissented
in Hollahan and was joined in concurrence by the justice
who concurred in Johnson—followed Johnson’s reasoning by
reviewing the trial court’s procedure for prejudicial impact,
concluding that the “record contains no indication that the
presence of the nonjurors affected the jury’s viewing of the
video.” Jones, at ¶ 27. The dissenting justice was the author of
Hollahan. He invoked that decision in his dissent.
After granting leave to appeal the appellate court’s decision
in Hollahan, the supreme court reversed that decision in People
v. Hollahan, 2020 IL 125091. The court specically rejected the
notion that “deliberations, once begun, cannot be suspended
by the trial court.” Id. at ¶ 25. Declining to nd any error in
the proceedings that occurred in the trial court, the supreme
court found that “defendant has demonstrated no prejudice
attributable to ‘clear or obvious error’—for purposes of plain
error review—in the way the trial court chose to proceed in this
case.” Id. at ¶ 23.
Subsequent to the supreme court decision in Hollahan,
in People v. Reynolds, 2021 IL App (1st) 181227, ¶¶ 67-75,
during jury deliberations and at the jury’s request, the trial court
allowed the jury to hear recordings of jail calls in the courtroom
in similar fashion to the cases summarized above. There, the
appellate court applied Hollahan in rejecting the defendant’s
contention that the process followed by the trial court consti-
tuted plain error by inhibiting the jurors’ deliberations.
Note that in People v. Cavitt, 2021 IL App (2d) 170149-B,
a case the supreme court remanded to the appellate court in
the exercise of its supervisory authority based on its holding
in Hollahan, the appellate court distinguished the holding in
Hollahan, and reversed defendant’s convictions and remanded
the case for retrial based on the trial court’s refusal to send a
surveillance video on a laptop computer to the jury room after
the jury requested the video during its deliberations, and based
on the trial court’s comments to the jury about not overempha-
sizing one piece of evidence and its limiting the jury’s view
in the courtroom to a single viewing, where the video lacked
clear images and did not play in real time, and where the trial
court had itself reviewed the video numerous times and even
overturned an attempted murder verdict based on that review.
Reasoning that the jury should have had unrestricted access
based on those considerations, the appellate court held that the
trial court’s actions had resulted in second-prong plain error.
Subsequent to all of the decisions described above, in People
v. McLaurin, 2021 IL App (3rd) 180122, the deliberating jury
asked to listen to the audio recording of the statement given to
police by the victim of the defendant’s shooting, a statement
previously entered into evidence to impeach the victim’s testi-
mony that the defendant was not involved in the shooting. The
audio was played in the courtroom a single time by a bailiff.
In addition to the jury and the bailiff, the trial judge and the
court reporter were present. On plain error review on appeal,
the defendant contended that the procedure employed by the
COMMENTARY CONTINUED
149ARTICLE VI. WITNESSES RULE 606
COMMENTARY CONTINUED
trial court hindered the jurors’ ability to deliberate privately.
Conceding that “the supreme court has found acceptable
the practice employed by the court” in this case (id. at ¶ 12),
the appellate court rejected that contention and afrmed the
defendant’s conviction. The author of Hollahan’s appellate
decision, who also authored McLaurin, concluded by asserting
that “best practice prescribes allowing the jury to listen to such
a recording outside the presence of anyone else.” Id.
Note that, in each of the cases summarized above, the
defendant did not object to the procedure employed by the
trial court. The analysis applied by the supreme court and the
appellate court thus was based on the propriety of applying
the plain error rule—a rule that need not be invoked where a
defendant preserves the issue by objecting and by including the
issue in a posttrial motion. Whether or not a defendant objects,
the trial court should be aware that deliberating jurors might be
improperly inuenced or improperly restricted in its review. The
most obvious remedy for the trial court is to provide sufcient
means for the deliberating jury to control its own review of a
video in the jury room. If, however, only the courtroom allows
for such review, the most prudent course is for the trial judge to
ensure that only jurors are present and that they are solely able
to operate and replay the device that allows playback.
150RULE 607 ARTICLE VI. WITNESSES
Author’s Commentary on Ill. R. Evid. 607
The rst two clauses of IRE 607 are identical to all of FRE
607 before the latter’s amendment solely for stylistic purposes
effective December 1, 2011. They also are identical to Illinois
Supreme Court Rule 238(a). The exception that provides
the requirement to show afrmative damage when there is
impeachment by a prior inconsistent statement that is not
admissible for substantive purposes is not present in the federal
rule, and is added in the Illinois rule to codify Illinois common
law. See, e.g., People v. Cruz, 162 Ill. 2d 314, 359-60 (1994)
(to be afrmatively damaging, as opposed to being merely
disappointing to the prosecution’s case, the witness’s testimony
must give “positive aid” to the defendant’s case; “the enactment
of section 115-10.1 of the Code of Criminal Procedure of 1963,
subsequent to these crimes, supports a rigorous enforcement
of the damage requirement under Rule 238(a). [Citing to what
is now 725 ILCS 5/115-10.1]. Now that a party can admit into
evidence a ‘turncoat’ witness’ prior inconsistent statement
by complying with section 115-10.1, the introduction of oral
inconsistent statements under the guise of impeachment should
be foreclosed.”). See also People v. McCarter, 385 Ill. App. 3d
919, 933 (2008) (same), and People v. Johnson, 2013 IL App
(1st) 111317, ¶ 47 (citing both Cruz and McCarter and holding
“[n] order for witness testimony to be afrmatively damaging,
as opposed to merely disappointing to the prosecution’s case,
the testimony must give ‘positive aid’ to the defendant’s case”).
The intent of the codied Illinois exception—previously
provided only by common law and not by Ill. S. Ct. R. 238(a),
which permits impeachment of one’s own witness but does
not provide the exception—is to prevent a party’s ploy of
calling a witness for the purpose of presenting the jury, through
cross-examination, a favorable prior inconsistent statement that
is not admissible substantively. See e.g., People v. Weaver, 92
Ill. 2d 545, 563 (1982) (“No possible reason exists to impeach a
witness who has not contradicted any of the impeaching party’s
evidence, except to bring inadmissible hearsay to the attention
of the jury”). The Illinois rule prohibits that type of impeach-
ment in the absence of a showing of afrmative damage,
which is unnecessary when the prior inconsistent statement is
admissible substantively, which is the case under the evidence
rules cited in the last sentence of the rule.
For an example of a decision where, without citing the rule
but relying solely on common law, the appellate court held that
afrmative damage had occurred to the State’s case by virtue
of a witness’s testimony, see People v. Perez, 2018 IL App (1st)
153629, ¶ 33 (holding that impeachment of the witness was
proper because essentially his “testimony was that defendant
could not and did not shoot” the victim). See also People v.
Cook, 2018 IL App (1st) 142134, ¶ 48 (holding that, though
a witness’s prior inconsistent statement was not admissible
as substantive evidence, it was admissible for impeachment
purposes because his testimony did afrmative damage to the
Rule 607. Who May Impeach
e credibility of a witness may be attacked by any
party, including the party calling the witness, except
that the credibility of a witness may be attacked by the
party calling the witness by means of a prior inconsistent
statement only upon a showing of armative damage.
e foregoing exception does not apply to statements
admitted pursuant to Rules 801(d)(1)(A), 801(d)(1)
(B), 801(d)(2), or 803.
Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness,
may attack the witness’s credibility.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
151ARTICLE VI. WITNESSES RULE 608
COMMENTARY CONTINUED
Rule 608. Evidence of Character of Witness for
Truthfulness or Untruthfulness
e credibility of a witness may be attacked or
supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character
is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation
evidence or otherwise.
Rule 608. A Witness’s Character for Truthfulness or
Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s
credibility may be attacked or supported by testimony
about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the
form of an opinion about that character. But evidence
of truthful character is admissible only after the wit-
ness’s character for truthfulness has been attacked.
(b) Specic Instances of Conduct. Except for
a criminal conviction under Rule 609, extrinsic evi-
dence is not admissible to prove specic instances of
a witness’s conduct in order to attack or support the
witness’s character for truthfulness. But the court may,
on cross-examination, allow them to be inquired into
if they are probative of the character for truthfulness or
untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness
being cross-examined has testied about.
By testifying on another matter, a witness does not
waive any privilege against self-incrimination for tes-
timony that relates only to the witness’s character for
truthfulness.
State’s case, where he inconsistently testied that an incident
between defendant and the deceased shooting victim occurred
at a different time and in a different place, and no gunshots were
red; and where he disavowed his prior signed statement and
grand jury testimony which identied defendant and another
as the offenders, claiming that the prior signed statement was
a forgery).
lack of memory doeS not conStitute “affirmative damage”
In People v. Leonard, 391 Ill. App. 3d 926, 933 (1994), the
Third District of the appellate court held that “[w]hen a witness
professes a lack of memory regarding a prior statement, his
testimony may be considered damaging.” In People v. Wilson,
2012 IL App (1st) 101038, ¶ 45, however, the First District
rejected that holding, concluding “that a witness’s professed
lack of memory, standing alone, does not ‘afrmatively dam-
age’ a party’s case for the purpose of impeaching one’s own
witness.” Later, in People v. Blakey, 2015 IL App (3d) 130719,
¶ 50, another panel of the Third District cited Wilson in holding
that “Leonard was incorrect.”
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
152RULE 608 ARTICLE VI. WITNESSES
Author’s Commentary on Fed. R. Evid. 608(b)
IRE 608 does not incorporate FRE 608(b). But inquiry into
specic instances of conduct, both to attack and to support a
witness’s character for truthfulness, is a frequent occurrence in
federal trials, particularly in criminal cases.
inquiry about Specific actS of conduct
The ability of federal prosecutors to inquire into specic
instances of conduct often results in a defendant opting not to
testify. And such examination is utilized frequently by defense
attorneys in federal criminal cases, particularly where alleged
joint offenders or coconspirators testify for the government and
against the defendant.
The trial of William Cellini for attempted extortion illustrates
its use in such cases. There, defense attorney Dan Webb
cross-examined an admittedly corrupt Stuart Levine after his
direct testimony on behalf of the government. According to a
newspaper account (see “Corruption witness grilled,” Chicago
Tribune, October 15, 2011, page 4), Webb questioned Levine
“about how he felt about it all.” When Levine did not answer
Webb’s inquiry about how many “acts of dishonesty” he
engaged in, Webb said, “I’ll take an estimate,” asking whether
it was a number “over 500.” When Levine said he didn’t know
how to “quantify it,” Webb asked, “Is it fair to say there has been
so many you can’t give an estimate of a total?” And this was just
within the rst hour of the cross-examination concerning the
witness’s specic instances of conduct, a total examination that
lasted approximately three days.
Likewise, if he were a witness in a federal trial, former NBC
news anchor Brian Williams could be cross-examined about
his statements that his military helicopter was under re and
was even hit by a rocket-propelled grenade in Iraq in 2003, and
about his having observed a dead body oating by his hotel
in the (relatively dry) French Quarter of New Orleans during
Hurricane Katrina. Hilary Clinton could be cross-examined
about her recollection that, during the war in Bosnia in 1996,
her plane landed under re and she had to scurry off, when in
fact she was greeted on the tarmac by schoolchildren bearing
owers. Ronald Reagan could be cross-examined about his
claim to have witnessed the liberation of Nazi concentration
camps, when he was stateside during the war.
Again, the types of inquiry described above are not permit-
ted under Illinois’ version of Rule 608.
prohibition on extrinSic evidence of Specific actS of conduct
Inquiry about specic acts of conduct under FRE 608(b)
must be distinguished from the presentation of extrinsic evi-
dence as proof of specic acts of conduct. In federal cases,
inquiry about specic acts of conduct is allowed when there
is a good faith basis for making inquiry. Proof of specic acts
of conduct, however, is prohibited either as direct or rebuttal
evidence where the witness (who may be a witness who has
testied about another witness’s character for truthfulness or
untruthfulness, or a witness whose own credibility is being
attacked) denies that the specic act occurred. Stated another
way: (1) extrinsic evidence of specic acts of conduct is not
admissible as stand-alone evidence to prove character for truth-
fulness or untruthfulness, and (2) extrinsic evidence of specic
acts of conduct is not admissible to impeach either a witness
who denies knowledge of the inquired-about conduct or a wit-
ness who denies that the inquired-about conduct occurred. The
testimony of such a witness must be accepted by the examining
party.
But United States v. Fernandez, 914 F.3d 1105 (7th Cir.
2019), presents an exception to the general rule prohibiting
the admission of specic acts of conduct where the witness
denies the acts. In that case, the defendant questioned a
defense witness about text messages she allegedly received
from a key prosecution witness against the defendant. The
defendant contended that the messages showed bias against
the defendant and the witness and provided a motive for the
witness’s inculpating the defendant. Because the prosecution
witness had denied sending the text messages, the trial court
refused to allow the defense witness to testify to the contents of
the messages, citing FRE 608(b). Holding that the trial court’s
ruling was erroneous, the Seventh Circuit pointed out that “Fed.
R. Evid. 608(b) allows proof of specic instances of conduct to
establish bias or prior inconsistent statement.” Fernandez, 914
F.3d at 1114. In support of its ruling, the Seventh Circuit cited
its prior holdings in United States v. McGee, 408 F.3d 966,
981-82 (7th Cir. 2005), and United States v. DeMarco, 784
COMMENTARY
153ARTICLE VI. WITNESSES RULE 608
F.3d 388, 394 (7th Cir. 2015). The court held that “[o]nce [the
prosecution witness] was confronted with the texts and effec-
tively denied sending them, the door was opened to extrinsic
evidence of the texts pursuant to Rule 613(b), contrary to the
district court’s understanding.” Id.
differenceS between fre 608(b) and fre 609
The differences between FRE 608(b) and FRE 609 should be
noted. One difference is that FRE 608(b) gives discretion to the
trial court to allow cross-examination of any witness (including
an accused) about specic acts of conduct related to truthful-
ness or untruthfulness, by applying the balancing test of Rule
403, which bars evidence if the prejudicial effect substantially
outweighs probative value. FRE 609 also allows evidence of a
felony conviction of a mere witness by applying the balancing
test of Rule 403, but requires a different balancing test for an
accused, one that shifts the burden by allowing the evidence of
conviction only if its probative value outweighs its prejudicial
effect. Another difference is that FRE 609 bars admission of
convictions more than 10 years old (with the exception pro-
vided for under FRE 609(b)). In contrast, FRE 608(b) has no
time-limit restriction.
Perhaps the most signicant difference between the two
rules is that FRE 608(b) allows the admission of facts underlying
offenses, even where there has been no conviction or where
evidence of a conviction has been barred. For example, the
trial court may bar evidence of a conviction under the exercise
of its discretion under FRE 609 or based on the conviction’s
being time-barred under FRE 609(b), but still allow evidence
(sometimes referred to as “back-door” admission), not about
the fact of conviction, but about the facts (the prior bad acts)
that underlie an event for which there either was or was not a
conviction (e.g., the trial court’s disallowing questions about a
15-year-old perjury conviction under FRE 609(b), but allowing
questions about the witness having lied under oath under FRE
608(b)).
U.s. v abair: oppoSing viewS on application of fre 608(b)
United States v. Abair, 746 F.3d 260, (7th Cir. 2014), pres-
ents interesting opposing views concerning the application of
FRE 608(b) and the standard of review on appeal. In that case,
the defendant was prosecuted for structuring currency transac-
tions in order to evade federal reporting requirements. She was
convicted by a jury of multiple counts of that offense, which
were merged into one count for sentencing purposes, and she
was sentenced to two years probation and ordered to sell her
newly purchased home and to forfeit to the government all the
proceeds of that sale, amounting to $67,060. The defendant,
who emigrated from Russia in 2005 and married an American
citizen whom she later divorced, garnered much sympathy
from the judges who reversed her conviction and even from the
dissenting judge. The majority referred to the defendant as “at
most a one-time offender who committed an unusually minor
violation” and expressed “serious doubts that the forfeiture of
her home’s entire $67,000 value comports with the ‘principle
of proportionality’ that is the ‘touchstone of the constitutional
inquiry about the Excessive Fines Clause.’” The dissent referred
to the case as being an “overzealous prosecution for a technical
violation of a criminal regulatory statute — the kind of rigid
and severe exercise of law-enforcement discretion that would
make Inspector Javert proud,” and stated that, “I would afrm,
although not without serious misgivings about the wisdom of
this prosecution.”
The majority found that the trial court abused its discretion
in allowing the defendant to be cross-examined, under FRE
608(b), about false statements on her joint income tax return
and the student aid forms she led while attending nursing
school. Her divorced husband testied that he completed the
tax return and she testied that she had played almost no role
in preparing it; and, as to the nancial aid forms, there was
evidence that the forms she completed allowed her to skip
questions about her assets that were irrelevant to her appli-
cation. The majority concluded that the government did not
demonstrate a sufcient reason to believe that the defendant
actually lied, and held that the trial court therefore abused its
discretion in allowing cross-examination on the nancial lings
because the government did not provide a sufcient basis to
believe the lings were probative of the defendant’s character
for truthfulness.
The dissent, on the other hand, stressed the deferential stan-
dard of review and the fact that, although the evidence gave rise
to competing inferences, one permissible interpretation was
COMMENTARY CONTINUED
154RULE 608 ARTICLE VI. WITNESSES
Author’s Commentary on Ill. R. Evid. 608 and Non‑Adoption of Fed. R. Evid. 608(b)
Except for the title, which previously had incorrectly read
“Evidence of Character Witness” and which was corrected
by the supreme court effective January 6, 2015, IRE 608 is
identical to FRE 608(a) before the latter’s amendment solely for
stylistic purposes effective December 1, 2011. FRE 608(b) has
not been adopted. There therefore is no subdivision designated
(a) or (b) in IRE 608.
The Illinois rule permits the credibility of a witness to be
attacked or supported by opinion or reputation evidence, with
two limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness (and not to specic instances of
conduct), and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
Note that all of IRE 608 is identical to the wording of pre-
amended FRE 608(a), both rules addressing “evidence of char-
acter.” The rule, which allows reputation or opinion evidence
concerning the character for truthfulness or untruthfulness
of a witness, necessarily relates to the testimony of a witness
about the character for truthfulness or untruthfulness of another
witness or the witness providing such character evidence. It
is consistent with Illinois common law, except that allowing
opinion evidence concerning character represents a substantive
change in Illinois law because, before this codication, Illinois
allowed proof of character only through reputation testimony.
See People v. Cookson, 215 Ill. 2d 194, 213 (2005) (noting that
the supreme court has “consistently held” that only reputation
evidence and not opinion evidence or evidence of specic
past instances of untruthfulness could be used to impeach a
witness’s reputation for truthfulness).
non-adoption of fre 608(b)
FRE 608(b) (known as the impeachment by “prior bad acts
rule” to distinguish it from Rule 609’s impeachment by “prior
criminal conviction rule”) has not been adopted in Illinois.
FRE 608(b) allows proof of “specic instances of conduct,”
as such conduct relates to the character of a witness for truthful-
ness or untruthfulness. Under the federal rule, a testifying wit-
ness may be cross-examined (1) about specic instances of the
witness’s own conduct related to truthfulness or untruthfulness,
or (2) about specic instances of conduct related to truthfulness
or untruthfulness of another witness about whose character the
witness has testied. That type of inquiry (referred to as “spe-
cic-act impeachment,” generally related to questioning about
specic instances of untruthfulness or questions about “prior
bad acts”) is not permitted in Illinois.
See People v. Cookson, 215 Ill. 2d 194 (2005) (pointing out
that the supreme court has consistently held that impeachment
of a witness’s reputation for truthfulness is not permitted by use
of specic past instances of untruthfulness); People v. Santos,
211 Ill. 2d 395 (2004) (trial court properly disallowed ques-
tioning of 16-year-old sexual abuse victim about her lying to
medical personnel about having sex with another man within
previous 72 hours of alleged offense; because of prohibition of
specic-act impeachment, supreme court rejected defendant’s
argument that “if the jury knew that the witness had lied on a
previous occasion, the jury would be more likely to believe
she was lying in her testimony regarding the facts at issue in
the case”).
teStimony on a witneSS’S credibility prohibited
Also, in Illinois it is improper to ask one witness to com-
ment directly on the credibility of another witness. See People
v. Becker, 239 Ill. 2d 215 (2010) (citing cases and excluding
expert testimony about reliability/credibility of hearsay state-
ments of a child witness concerning a sexual assault). See
also People v. Stevens, 2018 IL App (4th) 160138 (citing other
Illinois decisions and IRE 608 in holding “[a] witness is only
permitted to express an opinion about another witness’s char-
acter for truthfulness after their character for truthfulness has
been attacked by reputation or opinion evidence.” Id. at ¶ 47).
COMMENTARY CONTINUED
that the defendant provided false information on her nancial lings and that the cross-examiner needed only to have a good
faith factual basis to support the proposed line of questioning.
155ARTICLE VI. WITNESSES RULE 608
exampleS of limited permiSSible inquirieS related to credibility
Nevertheless, it should be noted that, for the purpose of
attacking general credibility, Illinois does allow inquiry con-
cerning a witness’s prior wrongdoings that may be related to
a possible bias, interest, or motive for giving false testimony,
such as where a prosecution witness expects to receive a lesser
sentence for his testimony. See People v. Bull, 185 Ill. 2d 179
(1998) (holding that, where evidence of arrest or commission
of an offense is sought to be introduced, “the evidence that
is used must give rise to the inference that the witness has
something to gain or lose by his or her testimony. Therefore, the
evidence used must not be remote or uncertain.”). Such inquiry
also is allowed concerning a witness’s disreputable occupation
(see People v. Winchester, 352 Ill. 237, 244 (1933) (allowing
cross-examination regarding witness’s operation of a “house of
prostitution”)), and a witness’s narcotics addiction either at the
time of testifying or at the time of the occurrence (see People v.
Collins, 106 Ill. 2d 237, 270 (1985) (inquiry is proper because
it goes to the witness’s credibility and the ability of the witness
to recall)).
required acceptance of anSwer to queStion about collateral
matter
Consistent, however, with the federal rule and the discussion
in the heading just below, Illinois requires that an answer to a
question concerning a collateral matter (i.e., one not relevant
to a material issue in the case and sought to be introduced
only to contradict) must be accepted, and the impeachment
may not be completed by the presentation of extrinsic evidence
(i.e., evidence other than the witness’s testimony). See Esser v.
McIntyre, 169 Ill. 2d 292, 304-05 (1996) (failure to inquire
about witness’s occupation as prostitute during evidence
deposition meant that, in absence of the witness, no inquiry
could be made on the subject at trial); Poole v. University of
Chicago, 186 Ill. App. 3d 554, 562 (1989) (denial by plaintiff’s
expert witness during cross-examination that he was subject to
pending medical disciplinary proceedings in another state was
a collateral matter that bound defendant, thus rendering erro-
neous the admission of proof of the disciplinary proceedings
for impeachment purposes).
extrinSic evidence of Specific actS of conduct prohibited
In addition to not permitting inquiry concerning specic
instances of conduct (except for the limited circumstances
described above), and consistent with FRE 608(b), Illinois does
not permit proof of specic instances of conduct by extrinsic
evidence to support or attack a witness’s character for truthful-
ness. See People v. West, 158 Ill. 2d 155 (1994) (rejecting the
argument that evidence of specic acts of untruthfulness should
be admitted to impeach a child witness because the child was
too young to have developed a reputation in the community);
People v. Williams, 139 Ill. 2d 1 (1990) (complainant’s seventh
and eighth grade teachers could not testify at trial that she was
an “inveterate liar”); Podolsky and Assocs. L.P. v. Discipio, 297
Ill. App. 3d 1014 (1998) (rejecting adoption of FRE 608(b) and
holding that the trial court properly refused to allow evidence
of a lawyer’s suspension from the practice of law).
exceptionS to the general rule prohibiting evidence of Specific
actS of conduct
That Illinois permits proof of specic instances of conduct
pursuant to certain criminal statutes should not be confused
with the fact that Illinois does not permit such evidence for
establishing the truthfulness or untruthfulness of a witness.
Examples of statutes that permit inquiry into specic instances
of conduct, for propensity purposes, include those cited in IRE
404(b) and discussed in the author’s comments to that rule, as
well as those cited in IRE 413 and the author’s comments to
that rule.
COMMENTARY CONTINUED
156RULE 609 ARTICLE VI. WITNESSES
Rule 609. Impeachment by Evidence of Conviction
of Crime
(a) General Rule. For the purpose of attacking the
credibility of a witness, evidence that the witness has
been convicted of a crime, except on a plea of nolo
contendere, is admissible but only if the crime, (1)
was punishable by death or imprisonment in excess of
one year under the law under which the witness was
convicted, or (2) involved dishonesty or false statement
regardless of the punishment unless (3), in either case,
the court determines that the probative value of the
evidence of the crime is substantially outweighed by the
danger of unfair prejudice.
(b) Time Limit. Evidence of a conviction under
this rule is not admissible if a period of more than 10
years has elapsed since the date of conviction or of the
release of the witness from connement, whichever is
the later date.
(c) Eect of Pardon, Annulment, or Certicate
of Rehabilitation. Evidence of a conviction is not
admissible under this rule if (1) the conviction has been
the subject of a pardon, annulment, certicate of reha-
bilitation, or other equivalent procedure, and (2) the
procedure under which the same was granted or issued
required a substantial showing of rehabilitation or was
based on innocence.
(d) Juvenile Adjudications. Evidence of juvenile
adjudications is generally not admissible under this
rule. e court may, however, allow evidence of a juve-
nile adjudication of a witness other than the accused if
conviction of the oense would be admissible to attack
the credibility of an adult and the court is satised that
admission in evidence is necessary for a fair determina-
tion of the issue of guilt or innocence.
(e) Pendency of Appeal. e pendency of an appeal
therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is
admissible.
Rule 609. Impeachment by Evidence of a Criminal
Conviction
(a) In General. e following rules apply to attack-
ing a witness’s character for truthfulness by evidence of
a criminal conviction:
(1) for a crime that, in the convicting jurisdic-
tion, was punishable by death or by imprisonment
for more than one year, the evidence:
(A) must be admitted, subject to Rule 403,
in a civil case or in a criminal case in which the
witness is not a defendant; and
(B) must be admitted in a criminal case in
which the witness is a defendant, if the probative
value of the evidence outweighs its prejudicial
eect to that defendant; and
(2) for any crime regardless of the punishment,
the evidence must be admitted if the court can
readily determine that establishing the elements of
the crime required proving—or the witness’s admit-
ting—a dishonest act or false statement.
(b) Limit on Using the Evidence After 10
Years. is subdivision (b) applies if more than 10
years have passed since the witness’s conviction or release
from connement for it, whichever is later. Evidence of
the conviction is admissible only if:
(1) its probative value, supported by specic
facts and circumstances, substantially outweighs its
prejudicial eect; and
(2) the proponent gives an adverse party reason-
able written notice of the intent to use it so that the
party has a fair opportunity to contest its use.
(c) Eect of a Pardon, Annulment, or Certicate
of Rehabilitation. Evidence of a conviction is not
admissible if:
(1) the conviction has been the subject of a
pardon, annulment, certicate of rehabilitation, or
other equivalent procedure based on a nding that
the person has been rehabilitated, and the person has
not been convicted of a later crime punishable by
death or by imprisonment for more than one year; or
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
157ARTICLE VI. WITNESSES RULE 609
(2) the conviction has been the subject of a
pardon, annulment, or other equivalent procedure
based on a nding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile
adjudication is admissible under this rule only if:
(1) it is oered in a criminal case;
(2) the adjudication was of a witness other than
the defendant;
(3) an adult’s conviction for that oense would
be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly
determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satis-
es this rule is admissible even if an appeal is pending.
Evidence of the pendency is also admissible.
Author’s Commentary on Ill. R. Evid. 609(a)
For impeachment by evidence of conviction of a prior
crime, Illinois has adopted the standard provided by People
v. Montgomery, 47 Ill. 2d 510 (1971). In Montgomery, the
Illinois Supreme Court adopted the standard contained in the
1971 draft version of Federal Rule of Evidence 609, and not the
federal rule that ultimately was adopted. IRE 609 thus is not
identical to what ultimately became FRE 609.
differenceS between fre 609(a) and ire 609(a)
Dissimilarities between the two sets of evidence rules exist
in the balancing test applied to prior felony convictions of
the accused and in the test for prior convictions that involve
dishonesty or false statement:
(1) For proof of a prior felony conviction of a mere
witness, both the pre-amended and current versions of
FRE 609(a)(1), like IRE 609(a), apply the balancing test of
Rule 403. But, unlike IRE 609(a), FRE 609(a)(1) applies a
different test where the evidence of conviction is to be
introduced against the accused. When the witness is the
accused, the standard applied by FRE 609(a)(1) deviates
from the standard provided by Rule 403 by allowing
admission of the evidence of the conviction if the proba-
tive value of admitting it outweighs the danger of unfair
prejudice. In contrast, the Illinois rule, which adheres to
the balancing test of IRE 403, allows admission of the
evidence of the prior conviction if the danger of unfair
prejudice does not substantially outweigh its probative
value. The two rules therefore provide very different tests
where the accused is the witness.
(2) Unlike IRE 609(a), both the pre-amended and
current versions of FRE 609(a)(2) allow admission of
evidence of the conviction of a crime that involved
dishonesty or false statement without regard to con-
siderations of probative value and prejudicial effect. In
contrast, IRE 609(a) applies the IRE 403 balancing test to
such convictions.
In sum, IRE 609(a) applies the same balancing test regarding
the admission of evidence of prior convictions that is supplied
by Rule 403 (i.e., it prohibits the admission of such evidence
only where the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice), without dis-
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
158RULE 609 ARTICLE VI. WITNESSES
tinguishing between a mere witness and a witness who is the
accused, and without regard for whether the prior conviction
was for an offense involving dishonesty or false statement. As
noted above, FRE 609(a) provides a standard different for a
witness who is the defendant, and no standard for admitting
proof of a dishonest act or false statement.
related civil Statute
In a civil case, section 8-101 of the Code of Civil Procedure
(735 ILCS 5/8-101) provides that the interest of a witness “or
conviction may be shown for the purpose of affecting the cred-
ibility of such witness; and the fact of such conviction may be
proved like any fact not of record, either by the witness himself
or herself (who shall be compelled to testify thereto) or by any
other witness cognizant of such conviction, as impeaching
testimony, or by any other competent evidence.”
the Section 115-20 propenSity exception
Note that IRE 609 (like FRE 609) allows proof of a convic-
tion for a prior offense only for impeachment purposes, i.e.,
to challenge the credibility of a witness. Such evidence is not
permitted to prove propensity. See, for example, the Seventh
Circuit’s decision in Viramontes v. City of Chicago, 840 F.3d
423 (7th Cir. 2016), where, although holding that the error was
cured by a curative instruction, the court was critical of defense
counsel’s argument that the plaintiff’s earlier felony conviction
reected “his unwillingness to conform his conduct to the law.”
Nevertheless, Illinois has a statute, section 115-20 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/115-20; see
Appendix C), that permits proof of prior convictions in speci-
ed criminal cases to prove the propensity of a defendant to
commit any of the types of offenses listed in the statute against
the same victim. The statute, not to be confused with the
provisions of IRE 609, allows evidence of a prior conviction
for domestic battery, aggravated battery committed against a
family or household member, stalking, aggravated stalking,
or violation of an order of protection “in a later prosecution
for any of these types of offenses when the victim is the same
person who was the victim of the previous offense that resulted
in the conviction of the defendant.”
treatment of defendantS in criminal caSeS
Most appellate and supreme court cases that address the
proper application of the principles contained in what is now
codied in IRE 609(a) involve the admissibility of prior con-
victions of defendants for impeachment purposes in criminal
cases.
Illinois decisions require that, in a criminal case, evidence of
a prior conviction of the defendant for impeachment purposes
must be proved through the introduction of a certied copy of
the judgment of conviction, and not through cross-examination
of the defendant. See People v. Naylor, 229 Ill. 2d 584, 594
(2008); People v. Coleman, 158 Ill. 2d 317, 337 (1994); People
v. Flynn, 8 Ill. 2d 116 (1956). Thus, it would be improper for
a prosecutor in an Illinois trial court to ask the defendant in a
criminal case a question similar to that propounded by the fed-
eral prosecutor of a former Illinois governor: “Mr. Blagojevich,
you are a convicted liar, correct?”
In People v. Bey, 42 Ill. 2d 129 (1969), however, the supreme
court approved the cross-examination of the defendant, where
he had given incomplete testimony on direct examination
concerning his convictions. See also People v. Nastasio, 30
Ill. 2d 51 (1963). On the other hand, in People v. Harris, 231
Ill. 2d 582 (2008), where the defendant’s testimony on direct
examination opened the door to admission of his prior juvenile
adjudication, the supreme court reiterated its preference for
proof by certied documents in response to the defendant’s
contention on appeal that he should have been cross-examined
about the matter to allow him the opportunity to explain the
apparent inconsistency in his testimony.
Nevertheless, despite the general rule that the State is
required to offer proof by the record of conviction and not
by cross-examining the defendant about the fact that he was
convicted, violation of the rule does not require reversal. In
People v. Long, 2018 IL App (4th) 150919, the appellate court
noted that in People v. Madison, 56 Ill. 2d 476, 488 (1974), the
supreme court held that “ the presentation of a prior conviction
through cross-examination does not require reversal ‘unless
the error has deprived [the] defendant of substantial justice or
inuenced the determination of his guilt.’” Long, at ¶ 91. In
applying that principle in the case at bar, the appellate court
COMMENTARY CONTINUED
159ARTICLE VI. WITNESSES RULE 609
found no error in the State questioning the defendant about his
having been convicted of three separate offenses, holding that
“[t]he State presented strong evidence of defendant’s guilt, and
the record fails to reect he sustained unfair prejudice due to
the manner in which his prior convictions were admitted into
evidence.” Id. at ¶ 92.
requirement of a judgment of conviction
In order to impeach by a prior conviction under IRE 609
there must be a judgment of conviction. In People v. Salem,
2016 IL App (3d) 120390, the State was permitted to impeach
the defendant with proof that he had pleaded guilty to a felony
offense in a different county, but that he had not yet been
sentenced. After reviewing the statutory denitions of “convic-
tion” and “judgment” and considering decisions in other cases,
the appellate court held that the admission of that evidence
was error. And, since the defendant had not objected to the
admission of the mere plea of guilty, the court further held that
the error was structural in nature and thus constituted plain
error. Salem also is noteworthy because evidence of the defen-
dant’s 11 previous federal offenses, which were more than
10 years old and which the State conceded were erroneously
introduced, were also admitted into evidence for impeachment
purposes. The court held this too was plain error.
addreSSing motionS in limine
In People v. Patrick, 233 Ill. 2d 62 (2009), the supreme court
held that a trial court’s arbitrary ruling (as a blanket policy) not
to rule on a defendant’s pre-trial motion in limine concerning
the admissibility of prior convictions constitutes an abuse of
discretion. A Patrick violation (where a trial court, with sufcient
information to make a ruling, delays ruling on a defendant’s
motion in limine to bar admission of a prior conviction) is not a
structural error, and is therefore subject to harmless error anal-
ysis. People v. Mullins, 242 Ill. 2d 1 (2011); People v. Averett,
237 Ill. 2d 1 (2010); Patrick. The factors that are considered in
harmless error analysis are (1) the defendant’s need to testify;
(2) the type of reference, if any, to the defendant’s conviction in
closing argument; (3) the strength of the evidence against the
defendant. Mullins.
preServing error regarding admiSSibility rulingS
Averett and Patrick are authority for the principle that, to
preserve appellate review concerning error in the court’s
denial of the defendant’s motion in limine to exclude proof of
a prior conviction, the defendant must testify – even where,
as in Averett, the court erred in arbitrarily refusing to consider
a motion in limine. See also, People v. Washington, 2012 IL
107993, ¶ 42, where the supreme court cited Averett in hold-
ing that the Patrick issue is not reviewable when the defendant
chooses not to testify.
The principle that the defendant must testify to preserve
appellate review of the denial of the defendant’s motion
to exclude proof of a prior conviction is consistent with the
United States Supreme Court decision in Luce v. United States,
469 U.S. 38 (1984). Also, in Ohler v. United States, 529 U.S.
763 (2000), the Supreme Court held that, where the defendant’s
motion in limine to bar a prior conviction is denied, but the
defendant testies to the conviction on direct examination, he
waives his right to appeal the court’s motion in limine ruling.
rejection of “mere fact” method of proof
In People v. Atkinson, 186 Ill. 2d 450 (1999), and in People
v. Cox, 195 Ill. 2d 378 (2001), the supreme court rejected the
“mere fact” method of proving a prior conviction, i.e., that as
part of its balancing test, the trial court should consider per-
mitting admission merely of the fact of the conviction rather
than allowing a designation of the offense and sentence. The
court reasoned that it is “the nature of the past conviction not
merely the fact of it, that aids the jury in assessing a witness’s
credibility.” Atkinson, 186 Ill. 2d at 458. Also, the “mere fact”
method inevitably invites the jury to speculate about the prior
offense.
Note, however, that the “mere fact” rule is not violated by
not identifying a predicate felony offense where the impeach-
ing offense is based on the commission of an offense by a
felon, such as the offense of possession of a weapon by a felon.
People v. Catchings, 2018 IL App (3d) 160186, ¶¶ 49-51.
admiSSibility of conviction for Same offenSe
In Atkinson and in People v. Mullins, 242 Ill. 2d 1 (2011), the
supreme court held that, where the proper balancing test has
been applied by the trial court, the defendant’s prior convic-
COMMENTARY CONTINUED
160RULE 609 ARTICLE VI. WITNESSES
tion for the same offense for which he is on trial is admissible
for impeachment purposes. For an appellate court decision
reaching the same conclusion and citing other appellate court
decisions, see People v. Raney, 2014 IL App (4th) 130551,
¶¶ 24-31. See also People v. Carr-McKnight, 2020 IL App (1st)
163245, ¶¶ 80-81 (afrming the admission of defendant’s prior
misdemeanor theft conviction).
Author’s Commentary on Ill. R. Evid. 609(b)
The rst part of IRE 609(b) is identical to FRE 609(b) before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011, except that the portion of the pre-amended
and the now-current federal rule that permits admission of the
prior conviction that violates the “10-year rule” has not been
accepted in Illinois. Montgomery prohibits the admission of
evidence of a prior conviction, with or without notice, where
the conviction (or the release from incarceration, whichever is
later) occurred more than 10 years prior.
In Illinois, “the operative dates under Montgomery are
the date of the prior conviction or release from connement,
whichever occurred later, and the date of trial.” The date on
which the subsequent offense occurred is not controlling.
People v. Naylor, 229 Ill. 2d 584 (2008). Because the date
of the witness’s release from connement is controlling, any
time spent on parole or mandatory supervised release is not
relevant. People v. Sanchez, 404 Ill. App. 3d (2010).
Author’s Commentary on Ill. R. Evid. 609(c)
Although worded differently, IRE 609(c) is similar to
FRE 609(c) before the latter’s amendment solely for stylistic
purposes effective December 1, 2011. The only difference is
that the Illinois rule, in contrast to the federal rule, does not
expressly provide that a conviction for a subsequent felony is
a basis for allowing evidence of a prior conviction that was
otherwise annulled. (Note that Illinois generally uses terms
such as “clemency,” “pardon,” “commutation,” and “reprieve”
(see, e.g., 730 ILCS 5/3-3-13), rather than “annulment” and
“certicate of rehabilitation,” which are used in other states.)
Author’s Commentary on Ill. R. Evid. 609(d)
IRE 609(d) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for the deletion of “in a criminal case” in what
is now FRE 609(d)(1) because, under Illinois common law, the
exception applies both to civil and criminal cases.
PeoPle v. harris: opening the door for admiSSion
In People v. Harris, 231 Ill. 2d 582 (2008), the supreme
court held that juvenile adjudications are admissible for
impeachment purposes against a testifying defendant when the
defendant opens the door to such evidence. Because its hold-
ing was based on the defendant’s own misleading testimony
(he testied that “I don’t commit crimes”), the court declined
to consider whether section 5-150(1)(c) of the Juvenile Court
Act of 1987 (705 ILCS 405/5-150(1)(c)), which seemed to be
statutory authority for use of juvenile adjudications against
mere witnesses and had been interpreted as statutory authority
for such use against a testifying criminal defendant, overrides
the common law prohibition against such use. (The statute is
provided in its entirety in this guide at Appendix G.)
PeoPle v. villa: montgomery applieS; no Statutory conflict
In People v. Villa, 2011 IL 110777, a case in which it had
granted leave to appeal two days after adopting these rules, the
supreme court, in a 4-to-3 opinion, resolved a conict in the
holdings of two districts of the appellate court by concluding that
the common law rule, as provided by the Montgomery decision
(and by IRE 609(d)), presents the applicable evidentiary rule.
The court reached that conclusion by considering the history of
the statute, with particular emphasis on the fact that the statute
makes juvenile adjudications admissible against a testifying
criminal defendant “only for purposes of impeachment and
pursuant to the rules of evidence for criminal trials.” The court
concluded that the retention of that language in the statute rep-
resented the General Assembly’s intention to allow ”the admis-
sion of juvenile adjudications against a testifying defendant for
impeachment only in accordance with Montgomery and its
progeny.” Villa, at ¶ 41. In People v. Rodriguez, 2012 IL App
(1st) 072758-B, the appellate court, with one judge dissenting,
afrmed the defendant’s convictions for rst degree murder and
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161ARTICLE VI. WITNESSES RULE 610
COMMENTARY CONTINUED
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on
matters of religion is not admissible for the purpose
of showing that by reason of their nature the witness’
credibility is impaired or enhanced.
Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions
is not admissible to attack or support the witness’s
credibility.
Author’s Commentary on Ill. R. Evid. 610
IRE 610 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
other offenses, holding, after harmless error analysis, that the
erroneous admission of the defendant’s juvenile adjudication
was harmless beyond a reasonable doubt. In reaching that
conclusion, the majority distinguished the facts and the use (or
non-use) of the juvenile adjudication in the case at bar from
the facts, use, and importance of the juvenile adjudication in
Villa, which had necessitated the reversal of that defendant’s
convictions.
deletion of the committee comment on ire 609
When the evidence rules were rst codied, the Committee
provided a Comment to this rule, stating that the codication of
the Montgomery holding was not intended to resolve the pos-
sible conict between that holding and the statute discussed
above and addressed in Villa. See also the “Statute Validity”
discussion in the Committee’s general commentary on page 2
of this guide. The reason the Committee kept the issue an open
question was that, when it presented the codied rules to the
supreme court, it was aware of the possible conict between
the statute and the Montgomery holding and, more important,
of the conict in the holdings of the appellate court brought
about by the Second District’s opinion in People v. Villa, 403 Ill.
App. 3d 309 (2010) and the Fourth District’s opinions in People
v. Bond, 405 Ill. App. 3d 499 (2010) and People v. Coleman,
399 Ill. App. 3d 1150 (2010). There is no longer an open ques-
tion. The supreme court’s decision in Villa rmly established the
evidentiary principles provided by IRE 609(d)—at least in the
absence of further legislative action. And for that reason, the
Committee Comment that originally accompanied IRE 609 has
been deleted by the supreme court, effective January 6, 2015.
Author’s Commentary on Ill. R. Evid. 609(e)
IRE 609(e) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
162RULE 611 ARTICLE VI. WITNESSES
Rule 611. Mode and Order of Interrogation and
Presentation
(a) Control by Court. e court shall exercise
reasonable control over the mode and order of inter-
rogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation eective
for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examina-
tion should be limited to the subject matter of the direct
examination and matters aecting the credibility of the
witness, which include matters within the knowledge
of the witness that explain, qualify, discredit or destroy
the witness’s direct testimony. e court may, in the
exercise of discretion, permit inquiry into additional
matters as if on direct examination.
(c) Leading Questions. Leading questions should
not be used on the direct examination of a witness except
as may be necessary to develop the witness’ testimony.
Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile or an
unwilling witness or an adverse party or an agent of an
adverse party as dened by section 2–1102 of the Code
of Civil Procedure (735 ILCS 5/2–1102), interrogation
may be by leading questions.
Rule 611. Mode and Order of Examining Witnesses
and Presenting Evidence
(a) Control by the Court; Purposes. e court
should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence
so as to:
(1) make those procedures eective for deter-
mining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
(b) Scope of Cross-Examination. Cross-examina-
tion should not go beyond the subject matter of the
direct examination and matters aecting the witness’s
credibility. e court may allow inquiry into additional
matters as if on direct examination.
(c) Leading Questions. Leading questions should
not be used on direct examination except as necessary
to develop the witness’s testimony. Ordinarily, the
court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse
party, or a witness identied with an adverse party.
Author’s Commentary on Ill. R. Evid. 611(a)
IRE 611(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
The rule or one or more of its subdivisions, sometimes in
conjunction with another evidence rule, provides the basis for
most objections based on the form of a question or the witness’s
response to a question.
Author’s Commentary on Ill. R. Evid. 611(b)
IRE 611(b) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for Illinois’ addition at the end of the rst sentence
the words, “which include matters within the knowledge of the
witness that explain, qualify, discredit or destroy the witness’s
direct testimony.” That clause was added to the rule by the
Illinois Supreme Court, effective October 15, 2015, merely
as a clarication of the preceding phrase, “matters affecting
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
163ARTICLE VI. WITNESSES RULE 611
the credibility of the witness,” and is based on the decision
in People v, Stevens, 2014 IL 116300, which is discussed just
below.
The rule is consistent with the well-established principle
that cross-examination concerning a witness’s bias, prejudice,
interest, or motive in testifying is proper and is protected by
both the Federal and Illinois constitutions (U.S. Const., amends.
VI, XIV; Ill. Const.1970, art. I, sec. 8). See People v. Gonzalez,
104 Ill. 2d 332, 337 (1984). As noted by the U.S. Supreme
Court in Davis v. Alaska, 415 U.S. 308 (1974), “[t]he partiality
of a witness is subject to exploration at trial and is always
relevant as discrediting the witness and affecting the weight
of his testimony. *** [T]he exposure of a witness’ motivation
in testifying is a proper and important function of the constitu-
tionally protected right of cross-examination.” Davis, 415 U.S.
at 315-17 (internal quotation marks omitted).
the stevens clarification
The Illinois Supreme Court’s decision in People v. Stevens,
2014 IL 116300, provides the rationale for the supreme court’s
addition of the clause described above. In Stevens, the defen-
dant was cross-examined about another sexual offense that
had occurred years after the sexual offense for which he was
on trial, the evidence of the subsequent offense having been
admitted during the State’s case-in-chief under section 115-
7.3(b) of the Code of Criminal Procedure of 1963 (725 ILCS
5/115-7.3(b); see Appendix A). During his testimony on direct
examination, the defendant testied only about the offense on
trial, offering a consent defense, and said nothing about the
subsequent offense. Nevertheless, the State was permitted to
cross-examine him about the subsequent offense. Framed by
the defendant’s contention that the State had exceeded the
scope of his direct examination and that he had not waived
his fth amendment right involving the subsequent offense, the
issue before the supreme court concerned the propriety of the
State’s cross-examination.
In addressing that issue, the supreme court held that the
defendant’s fth amendment right against self-incrimination
had not been violated because, by taking the stand and tes-
tifying in his own behalf, he opened himself up to legitimate
cross-examination. The court noted, moreover, that in an earlier
opinion it had “modied the general rule that had previously
limited cross-examination to the subject matter inquired into
on direct examination.” Stevens, at ¶ 24. The court explained
that it had “modied the rule to the extent that ‘[i]t is proper
on cross-examination to develop all circumstances within the
knowledge of the witness which explain, qualify, discredit or
destroy his direct testimony.’” Id. In this case, the court held,
the cross-examination had a proper purpose: to discredit the
defendant’s consent defense and test his credibility. The court
therefore held that the State’s cross-examination of the defen-
dant concerning the offense about which he had not testied
was proper.
The earlier case referred to and quoted by the supreme court
in Stevens is People v. Williams, 66 Ill. 2d 478 (1977). The entire
quote from the Williams opinion is:
“Although, as a general rule, cross-examination
is limited to the subject matter inquired into on direct
examination, the general rule is modied to the extent
that ‘It is proper on cross-examination to develop all cir-
cumstances within the knowledge of the witness which
explain, qualify, discredit or destroy his direct testimony
although they may incidentally constitute new matter
which aids the cross-examiner’s case.’ (Gard, Illinois
Evidence Manual R. 471 (1963).” Williams, 66 Ill. 2d at
486-87.
The holdings of the supreme court in Stevens and Williams
signaled that the subject-matter limitation on cross-examina-
tion is merely a general limitation — one that is subject to
the exceptions spelled out in those cases. The addition of the
explanatory clause in IRE 611(b) provides notice as to what is
included in the phrase, “matters affecting the credibility of the
witness.”
Similar Seventh circuit caSe—without reliance on rule 611(b)
United States v. Boswell, 772 F.3d 469 (7th Cir. 2014), pres-
ents a scenario similar to that in Stevens. In Boswell, during
cross-examination in a prosecution for the charge of felon
in possession of a rearm where there was evidence that the
defendant sold two rearms, the defendant denied the charge,
testifying that he did not like guns. The government then was
permitted to cross-examine him about the tattoo of a rearm
COMMENTARY CONTINUED
164RULE 611 ARTICLE VI. WITNESSES
on his neck. Without referring to Rule 611(b), the Seventh
Circuit approved the cross-examination based on relevancy
under Rule 401, holding additionally that there was no unfair
prejudice under Rule 403.
improper to deny recroSS examination aS a matter of courSe
In People v. Garner, 2018 IL App (5th) 150236, the appellate
court held that the denial of a defendant’s right to recross a
witness as a blanket policy, especially when new matter is
presented on redirect, is improper. In Garner, the trial court had
ruled that there was no right to recross and, though the defen-
dant made no offer of proof as to what was lost as a result of
the trial court’s ruling and failed to raise the issue in his posttrial
motion , the appellate court applied plain error in reversing the
conviction and remanding for retrial.
Author’s Commentary on Ill. R. Evid. 611(c)
IRE 611(c) is almost identical to the federal rule before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011, except for the deletion of the phrase “a
witness identied with an adverse party,” which is now in FRE
611(c)(2). The inclusion of that phrase would have represented
an expansion of Illinois law, which is capsulized in section
2-1102 of the Code of Civil Procedure (735 ILCS 5/2-1102),
entitled “Examination of adverse party or agent.” A “witness
identied with an adverse party” is broader than the concept
of “party” or the “agent of a party,” as dened in the Illinois
statute. Acceptance of that phrase also would have altered the
provisions of Supreme Court Rule 238(b), which allows ques-
tions as if under cross-examination of a “hostile or unwilling”
witness, without any reference to “a witness identied with an
adverse party.” Section 2-1102 of the Code of Civil Procedure
and Rule 238 are provided in the appendix to this guide at
Appendix H.
Regarding leading questions, see People v. Schladweiler,
315 Ill. 553, 556 (1925), where the supreme court stated:
“The test of a leading question is whether it suggests
the answer thereto by putting into the mind of the witness
the words or thought of such answer. Leading questions,
to be incompetent, must refer to material matters, and
occur where no necessity for them appears. Whether
or not such necessity exists is a matter resting largely
in the discretion of the trial court, an abuse of which
discretion will amount to prejudicial error. Questions
merely directing the attention of the witness to the sub-
ject-matter of the inquiry are not suggestive or leading in
any proper sense.”
Although the rule does not address the situation where an
adverse party, as dened by section 1102 of the Code of Civil
Procedure, is “cross-examined” by that party’s attorney, Illinois
common law requires questions that are non-leading. See, for
example Estate of Grifn v. Subram, 238 Ill. App. 3d 712 (1992)
(holding that leading questions by the party’s own attorney
during cross-examination of the party as an adverse party wit-
ness are improper, as are questions on new matters not brought
out by the initial examination of the adverse party). Those
restrictions, however, do not apply where the court orders or
the parties agree that an adverse party will be examined only
once and will not be recalled.
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165ARTICLE VI. WITNESSES RULE 612
Rule 612. Writing Used To Refresh Memory
If a witness uses a writing to refresh memory for the
purpose of testifying, either—
(1) while testifying, or
(2) before testifying,
an adverse party is entitled to have the writing pro-
duced at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence for the
purpose of impeachment those portions which relate
to the testimony of the witness. If it is claimed that the
writing contains matters not related to the subject mat-
ter of the testimony the court shall examine the writing
in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto.
Any portion withheld over objections shall be preserved
and made available to the appellate court in the event
of an appeal. If a writing is not produced or delivered
pursuant to order under this rule, the court shall make
any order justice requires, except that in criminal cases
when the prosecution elects not to comply, the order
shall be one striking the testimony or, if the court in
its discretion determines that the interests of justice so
require, declaring a mistrial.
Rule 612. Writing Used to Refresh a Witness’s
Memory
(a) Scope. is rule gives an adverse party certain
options when a witness uses a writing to refresh mem-
ory:
(1) while testifying; or
(2) before testifying, if the court decides that
justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated
Matter. Unless 18 U.S.C. § 3500 provides otherwise
in a criminal case, an adverse party is entitled to have
the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in
evidence any portion that relates to the witness’s testi-
mony. If the producing party claims that the writing
includes unrelated matter, the court must examine the
writing in camera, delete any unrelated portion, and
order that the rest be delivered to the adverse party.
Any portion deleted over objection must be preserved
for the record.
(c) Failure to Produce or Deliver the Writing. If a
writing is not produced or is not delivered as ordered,
the court may issue any appropriate order. But if the
prosecution does not comply in a criminal case, the
court must strike the witness’s testimony or—if justice
so requires—declare a mistrial.
Author’s Commentary on Ill. R. Evid. 612
IRE 612 is identical to FRE 612 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011,
except for: (1) the deletion of the reference to 18 U.S.C. §
3500, which is now in FRE 612(b) and which does not apply in
Illinois; (2) the deletion of the phrase in current FRE 612(a)(2)
that grants discretion regarding admissibility to the court when
a witness refreshes his or her memory before testifying; and (3)
the addition in the Illinois rule of the phrase “for the purpose
of impeachment,” in order to limit admission of the refreshing
document only for that purpose.
Note that, as held in Baxter International v. Becton,
Dickinson and Co., No. 17 C 7576 (N.D. Ill. November 22,
2019), review of privileged information to refresh memory may
result in waiver of the privilege.
Note, too, that the rule does not address the right to have
memory refreshed (which is a well accepted common-law
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
166RULE 613 ARTICLE VI. WITNESSES
Rule 613. Prior Statements of Witnesses
(a) Examining Witness Concerning Prior State-
ment. In examining a witness concerning a prior state-
ment made by the witness, whether written or not, the
statement need not be shown nor its contents disclosed
to the witness at that time, but on request the same
shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent State-
ment of Witness. Extrinsic evidence of a prior incon-
sistent statement by a witness is not admissible unless
the witness is rst aorded an opportunity to explain
or deny the same and the opposing party is aorded
an opportunity to interrogate the witness thereon, or
the interests of justice otherwise require. is provision
does not apply to statements of a party-opponent as
dened in Rule 801(d)(2).
(c) Evidence of Prior Consistent Statement of
Witness. Except for a hearsay statement otherwise
admissible under evidence rules, a prior statement that
is consistent with the declarant-witness’s testimony is
admissible, for rehabilitation purposes only and not
substantively as a hearsay exception or exclusion, when
the declarant testies at the trial or hearing and is avail-
able to the opposing party for examination concerning
the statement, and the statement is oered to rebut an
express or implied charge that:
(i) the witness acted from an improper inuence
or motive to testify falsely, if that inuence or motive
did not exist when the statement was made; or
(ii) the witness’s testimony was recently fabri-
cated, if the statement was made before the alleged
fabrication occurred.
Rule 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During
Examination. When examining a witness about the
witness’s prior statement, a party need not show it or
disclose its contents to the witness. But the party must,
on request, show it or disclose its contents to an adverse
party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent
Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness
is given an opportunity to explain or deny the state-
ment and an adverse party is given an opportunity to
examine the witness about it, or if justice so requires.
is subdivision (b) does not apply to an opposing
party’s statement under Rule 801(d)(2).
rule); rather, it addresses the options of an adverse party when
a witness uses a writing to refresh memory.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY CONTINUED
167ARTICLE VI. WITNESSES RULE 613
Author’s Commentary on Ill. R. Evid. 613(a)
IRE 613(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The portion of the rule that does not require showing
the statement or disclosing its contents to the witness arguably
represents a change in Illinois law (but not necessarily in
practice), because in Illinois Central Railroad Co. v. Wade, 206
Ill. 523 (1903), consistent with the requirement established in
Queen Caroline’s Case in 1820, the supreme court required
that written statements be shown to the cross-examined wit-
ness. See section (4) under the “Modernization” discussion in
the Committee’s general commentary on page 3 of this guide.
Contrary to the assertion that the abrogation of that require-
ment represents a change in Illinois law, however, note that IRE
613(a) addresses merely the method of questioning a witness
about a prior statement, while IRE 613(b) addresses the prereq-
uisites for admitting the extrinsic evidence in order to complete
the impeachment of the witness, which includes affording the
witness an opportunity to explain or deny the prior statement,
and affording the opposing party an opportunity to question the
witness about it.
Author’s Commentary on Ill. R. Evid. 613(b)
IRE 613(b) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for the clarifying addition of the word “rst” in
the phrase “unless the witness is rst afforded an opportunity
to explain or deny,” and the substitution of “opposing” in the
phrase “opposing party” for the pre-amended federal rule’s
use of “opposite party” and the current federal rule’s use of
“adverse party.”
A more recent change in the rule occurred as the result
of the Illinois Supreme Court’s amendment that was effective
on October 15, 2015. That amendment substituted the word
“statements” for the word “admissions” in IRE 613(b)’s nal
sentence. That amendment is consistent with the supreme
court’s simultaneous substitution of the word “statement”
for the word “admission” in the title of IRE 801(d)(2), which
now reads “Statement by Party-Opponent.” Both of those
amendments were made in recognition that “statements” of
a party-opponent are admissible against that party whether or
not they are “admissions.” Note that the last sentence of this
subdivision, which refers to statements that are substantively
admissible as statements of a party opponent under IRE 801(d)
(2), should be considered along with the provisions of IRE 806,
which bears the title “Attacking and Supporting Credibility of
Declarant.”
For an appellate court decision addressing IRE 613(b), see
People v. Evans, 2016 IL App (3d) 140120, ¶¶ 24-52 (in rst-de-
gree murder prosecution, holding that the prosecutor improp-
erly questioned the co-defendant, who had been convicted in
a separate trial and had been given use immunity, on his prior
“inconsistent” statements without laying a proper foundation
and without offering proof of the prior statements to complete
the “so-called impeachment,” as required by IRE 613(b),
and also holding that the confrontation clause was violated
because, despite the grant of use immunity, the co-defendant
witness continued to invoke the fth amendment and refused
to answer the prosecutor’s leading questions about the offense,
thus providing no evidence or basis for cross-examination—in
contrast to situations where the witness gives testimony incon-
sistent with prior statements or claims a loss of memory).
Author’s Commentary on Ill. R. Evid. 613(c)
IRE 613(c) represents a codication that was made effective
by the supreme court on January 6, 2015. As discussed in the
Author’s Commentary on IRE 801(d)(1) under the heading
2014 Amendment of FRE 801(d)(1)(B) and Its Non-Adoption
in Illinois, which fully discusses its common-law roots, the
rule reects well-established Illinois common law. It has no
counterpart in the federal rules. That is so because the Illinois
rule addresses the same subject matter as prior consistent state-
ments in what is now FRE 801(d)(1)(B)(i), but in a very different
manner. FRE 801(d)(1)(B)(i) provides substantive weight—as
not hearsay—for the witness’s prior consistent statements used
to rebut an express or implied charge that the testimony of the
witness/declarant is a recent fabrication or subject to recent
inuence or motive in testifying. IRE 613(c) permits the admis-
COMMENTARY
168RULE 613 ARTICLE VI. WITNESSES
sion of the same prior consistent statements under the same
circumstances as the federal rule, but solely for rehabilitative
purposes, and without providing those statements substantive
weight—that is, without admitting prior consistent statements
as a hearsay exclusion or as an exception to the hearsay rule.
In short, IRE 613(c) provides Illinois’ counterpart to FRE
801(d)(1)(B)(i) for the admission of prior consistent statements,
separate and apart from Rule 801(d), which provides exclusions
from the hearsay rule, and Rules 803 and 804, which provide
exceptions to the hearsay rule.
Effective September 17, 2019, the supreme court amended
the rule to add the initial phrase, “Except for a hearsay state-
ment otherwise admissible under evidence rules.” That was
done because of an appellate court decision—since withdrawn
—that had held that the pre-amended rule did not permit an
excited utterance (which was consistent with the witness’s
testimony) to be admitted. In doing so, the court abrogated the
holding in People v. Watt, 2013 IL App (2d) 120183, which had
held that a prior consistent statement could be admitted as an
excited utterance. It also would have abrogated a statue such as
the one addressed in People v, Applewhite, discussed infra. The
supreme court’s amendment is designed to make clear that the
rule does not deny admissibility to consistent statements that
are otherwise admissible.
Note that generally a prior consistent statement is admitted
after an attempt during questioning at trial to create an express
or implied charge that “the witness acted from an improper
inuence or motive to testify falsely” or that the “witness’s
testimony was recently fabricated.” But there are appellate
court decisions that allow witness rebuttal during direct exam-
ination where a party had suggested in opening statement that
witnesses would fabricate their testimony or have a motive for
testifying falsely. See, for example, People v. Doering, 2021
IL App (1st) 190420; People v. Ursery, 364 Ill. App. 3d 680
(2006); and People v. Nicholls, 236 Ill. App. 3d 275 (1992).
Regarding evidence admitted under IRE 613(c), judges and
criminal law practitioners would do well to heed the advice of
the appellate court regarding limiting instructions. In People v.
Randolph, 2014 IL App (1st) 113624, the court cited People
v. Lambert, 288 Ill. App. 3d 450, 461 (1997), in advising that
“[e]ven in cases where prior consistent statements are properly
admitted, such evidence must be accompanied by a limiting
instruction informing the jury that the evidence should not be
considered for its truth, but only to rebut a charge of recent fab-
rication.” Randolph, at ¶ 20. The Randolph court also advised
that “it is improper for the State to refer to the prior consistent
statements as substantive evidence in closing arguments.” Id.
In ruling on the substantive issue in Randolph, the appellate
court held that the trial court erred in allowing admission—as
prior consistent statements—information in a police report that
was consistent with a police ofcer’s trial testimony, where the
defendant had used the police report only for the purpose of
impeachment by omission.
People v. Ruback, 2013 IL App (3d) 110256, is an inter-
esting decision that predates the January 6, 2015 adoption
of IRE 613(c). There, the three judges, who wrote separately,
expressed different views as to whether charges of improper
motive or improper inuence and recent fabrication should be
treated separately, and whether the completeness doctrine (see
IRE 106) justied or did not justify the trial court’s ruling barring
the contested statements. The adoption of IRE 613(c) should
settle questions about circumstances that justify the admission
of prior consistent statements, while making clear that such
prior consistent statements do not carry substantive weight.
In People v. Applewhite, 2016 IL App (4th) 140588, shortly
after the offense, the 11-year-old victim informed her mother
and a nurse and two police ofcers of the sex act the defendant
committed on her. Her detailed description of the act, as well as
two other previous acts involving the defendant, were testied
to by her and by those who had interviewed her, pursuant to
section 115-10 of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-10; see Appendix U), which allows, as exceptions
to the hearsay rule, statements made by a person under age 13
who is the victim of certain physical and sexual offenses. Also,
a videotaped police interview in which she described the sex
act and the two previous similar acts was played for the jury.
In approving the admission of this evidence, the appellate
court rejected the defendant’s contention that section 115-10,
in allowing the admission of prior consistent statements of
witnesses, conicts with IRE 613(c) which denies substantive
COMMENTARY CONTINUED
169ARTICLE VI. WITNESSES RULE 613
COMMENTARY CONTINUED
admission of such statements. The court held that section 115-
10 specically provides for a hearsay exception and is thus an
exception to Rule 613(c).
In People v. Fillyaw, 2018 IL App (2d) 150709, the trial court
allowed the admission in evidence of a recording of a detective
and a witness concerning the circumstances of the witness’s
out-of-court identications of the two defendants in the case.
The recording was made just after the beginning of a retrial of
the two defendants. The primary purpose of the recording was
to establish that the witness had identied the two defendants
without police inuence. The trial court admitted the recording
as “substantive evidence to perfect impeachment” based on
section 115-10.1 of the Code of Criminal Procedure. Fillyaw, at
¶ 70. Reasoning that the statements were clearly prior consis-
tent statements that could not be admissible substantively, the
appellate court pointed out the exception that such statements
are “admissible to rebut a charge that the witness is motivated
to testify falsely or rebut a charge of recent fabrication” and that
“[t]he party seeking to introduce the prior consistent statement
predates the alleged fabrication or predates the motive to testify
falsely.” Id. at ¶ 71. Those conditions were not satised. Noting
that a prior consistent statement is not admissible whenever
there is a contradiction of a statement or merely to corroborate
another’s testimony, the appellate court held that no hearsay
exception applied to the admission of the witness’s statements
and that, although it did not refer to IRE 613(c), by implication
no exception applied under that rule as well.
In People v. Tatum, 2019 IL App (1st) 162403, ¶¶ 99-106,
on appeal from a murder conviction, the defendant contended
that the State improperly elicited prior consistent statements
made by two witnesses to police, prosecutors, and the grand
jury to bolster the credibility of their trial testimony. Providing
the entirety of the ve alleged consistent statements of the
witnesses (see id. at ¶ 100), the appellate court pointed out that
the complained-of statements showed that the witnesses had
indeed testied that they had talked to the police, prosecutors,
and the grand jury, informing them as to what they knew about
the case, but without informing the jury of the content of their
statements. The court thus held that there was no impropriety
in the witnesses’ providing unspecied information about the
case before testifying at trial and that, “[i]f the content of the
witnesses’ prior statements was not introduced, there is no
sense in which their statements were introduced at all.” Id. at
¶ 103. Because the content of their prior statements were not
disclosed, the witnesses’ testimony was not bolstered by prior
consistent statements, and the admitted statements did not
constitute error.
170RULE 614 ARTICLE VI. WITNESSES
Rule 614. Calling and Interrogation of Witnesses
by Court
(a) Calling by Court. e court may, on its own
motion or at the suggestion of a party, call witnesses,
and all parties are entitled to cross-examine witnesses
thus called.
(b) Interrogation by Court. e court may inter-
rogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses
by the court or to interrogation by it may be made at
the time or at the next available opportunity when the
jury is not present.
Rule 614. Court’s Calling or Examining a Witness
(a) Calling. e court may call a witness on its
own or at a party’s request. Each party is entitled to
cross-examine the witness.
(b) Examining. e court may examine a witness
regardless of who calls the witness.
(c) Objections. A party may object to the court’s
calling or examining a witness either at that time or at
the next opportunity when the jury is not present.
Author’s Commentary on Ill. R. Evid. 614(a)
IRE 614(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See People v. Sidney, 2021 IL App (3d) 190048, where the
appellate court quoted IRE 614(a) in noting that the trial court
may, on its motion or the suggestion of a party, call witnesses
and may interrogate such witnesses, as long as it does not
assume the role of advocate. In applying the rule, the appellate
court held that the court had properly called the defendant’s
attorney to bring out the truth regarding the defendant’s claims
of ineffective counsel and, although the attorney’s answers
to those questions did not support the defendant’s claim, the
questions did not render the court an advocate for the State.
Id. at ¶¶ 28-29.
Author’s Commentary on Ill. R. Evid. 614(b)
IRE 614(b) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See People v. Falaster, 173 Ill. 2d 220, 231-32 (1996)
(court must avoid conveying to jury its views regarding merits
of the case, veracity of witness, and weight of evidence). See
also People v. Johnson, 327 Ill. App. 3d 203, 205 (2001) (“In the
proper exercise of discretion, the trial court may pose questions
for the purpose of clarifying any ambiguities that may exist and
to help elicit the truth.”) Citing People v. Santucci, 24 Ill.2d 93,
98 (1962).
Author’s Commentary on Ill. R. Evid. 614(c)
IRE 614(c) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. See People v. Westpfahl, 295 Ill. App. 3d 327, 330
(1998), where the court reasoned:
“Although there is a general rule that failure to raise a
timely objection at trial waives consideration of an issue
on appeal (See, People v. Enoch, 122 Ill. 2d 176 (1988)),
we note precedent holding that a less rigid application
of the rule prevails where the basis for the objection is
the conduct of the trial judge. People v. Tyner, 30 Ill.
2d 101, 106 (1964); People v. Sprinkle, 27 Ill. 2d 398
(1963); People v. Dorn, 46 Ill. App. 3d 820 (1977). As
the issue in the instant matter involves the questioning of
a witness by the trial judge, we hold that the defendant
properly preserved this issue for review by registering an
objection outside the presence of the jury and prior to
the introduction of further evidence.”
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
171ARTICLE VI. WITNESSES RULE 615
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order wit-
nesses excluded so that they cannot hear the testimony
of other witnesses, and it may make the order of its
own motion. is rule does not authorize exclusion of
(1) a party who is a natural person, or (2) an ocer or
employee of a party which is not a natural person desig-
nated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to
the presentation of the party’s cause, or (4) a person
authorized by law to be present.
Rule 615. Excluding Witnesses
At a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’ tes-
timony. Or the court may do so on its own. But this
rule does not authorize excluding:
(a) a party who is a natural person;
(b) an ocer or employee of a party that is not a
natural person, after being designated as the party’s
representative by its attorney;
(c) a person whose presence a party shows to be
essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Author’s Commentary on Ill. R. Evid. 615
IRE 615 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for the non-substantive substitution of “law” for
“statute,” which appears at the end of the pre-amended federal
rule and in what is now FRE 615(d).
trial court’S need to exerciSe diScretion
In People v. Dixon, 23 Ill. 2d 136 (1961), the supreme court
reviewed cases and other authority in concluding that a motion
to exclude witnesses should normally be allowed, but that a
ruling is within the trial court’s sound discretion. The court held
that where there is no exercise of sound discretion by the trial
court, as in this case, and the court’s denial of the motion to
exclude witnesses is arbitrary, there is no need to show preju-
dice and reversal is proper.
conStitutional right to public trial in criminal caSeS
Though not directly related to this rule, judges and parties
must be mindful of the constitutional right to a public trial
provided by the Sixth Amendment for criminal trials. See,
for example, Waller v. Georgia, 467 U.S. 39 (1984) (right to
a public trial applies even to pretrial suppression hearings);
Globe Newspaper Co. v. Superior Court for Norfolk County,
457 U.S. 596 (1982) (press and public have a qualied First
Amendment right to attend a criminal trial); Press-Enterprise
Co. v. Superior Court of California, 464 U.S. 501 (1984) (right
to a public trial applies also to the voir dire proceeding in which
the jury is selected); Presley v. Georgia, 558 U.S. 209 (2010)
(extending Press-Enterprise Co. to include a single relative of
the defendant).
The applicable rules for denying open proceedings, as
articulated by the United States Supreme Court are:
“The presumption of openness may be overcome
only by an overriding interest based on ndings that
closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to
be articulated along with ndings specic enough that a
reviewing court can determine whether the closure order
was properly entered.” Press-Enterprise Co. v. Superior
Court of California, 464 U.S. 501, 510 (1984).
People v. Evans, 2016 IL App (1st) 142190, highlights the
need for care in excluding persons from the courtroom. In that
case, the step-grandmother of the defendant was excluded from
the courtroom before voir dire of prospective jurors occurred,
because of the trial court’s concern about possible juror con-
tamination and because of the courtroom’s small gallery, which
could barely accommodate the 45 prospective jurors who had
been summoned to the courtroom. Relying heavily on the
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
172RULE 615 ARTICLE VI. WITNESSES
near-identical case of Presley v. Georgia, 558 U.S. 209 (2010),
where the defendant’s uncle was excluded from the courtroom
for the same reasons, the appellate court noted that, in People
v. Thompson, 238 Ill. 2d 598 (2010), the Illinois Supreme
Court had included the denial of a public trial as structural
error requiring automatic reversal without the need to show
prejudice. And noting further that, as in Presley, the trial court
could have taken steps to accommodate the presence of the
step-grandmother (which included “calling the potential jurors
into the room in smaller groups”), the appellate court reversed
the defendant’s conviction for rst degree murder, which had
resulted in a 100-year prison sentence, and remanded the case
for a new trial.
In People v. Smith, 2020 IL App (3d) 160454, the trial court
closed the courtroom during jury voir dire, thus excluding the
defendant’s mother from the courtroom during jury selection.
The reason for the closure was that the courtroom could barely
accommodate the prospective jurors. Although there was no
contemporaneous objection and the defendant did not raise
the issue in a posttrial motion, the majority of the appellate
court panel applied the plain error rule in reversing the defen-
dant’s convictions. The dissenting justice, relying on the similar
appellate court case of People v. Radford, 2018 IL App (3d)
140404, cited that case and Weaver v. Massachusetts, 137 S.Ct.
1899 (2017), in concluding that the trial court had satisfactorily
explained the reason for the closure. (The supreme court deci-
sion in Radford is discussed just below.)
In Weaver, the defendant’s mother and his minister had been
excluded from the courtroom during jury selection, without
objection by the defendant. Later, the defendant sought a new
trial based on ineffective assistance of counsel for counsel’s not
having objected to the closure. The Supreme Court held that in
this instance the defendant needed to demonstrate prejudice
to obtain a new trial, but he had failed to offer evidence or
legal argument that the outcome of his case likely would have
differed had the courtroom not been fully closed to the public.
Weaver and the Illinois Supreme Court decision in Radford
dene the limitations on the sixth amendment right to a public
trial.
In People v. Radford, 2020 IL 123975, the appeal from
the appellate court case referred to above, the defendant was
charged with the murder of his two-year old daughter. Because
of the limitations on the courtroom size based on the number
of prospective jurors required, the trial court ordered a partial
closure of the courtroom during jury selection, limiting for
public admission two persons chosen by the defendant and
two persons from the victim’s family. Neither side objected to
the trial court’s order. Considering its plain error review based
on the defendant’s failure to contemporaneously object to the
partial closure of the courtroom, the problems associated with
the courtroom size, and the care of the trial court in fashioning
an appropriate remedy, the supreme court held that the partial
closure of the courtroom did not constitute clear or obvious
error by depriving the defendant his sixth amendment right to a
public trial. Radford, at ¶¶ 22-42.
Section 115-11: Statutory baSiS for courtroom excluSion
It should be noted that the only statutory basis in Illinois for
excluding persons from the courtroom is in section 115-11 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-11).
Where a prosecution is for the listed sex offenses in that statute
and “where the alleged victim of the offense is a minor under
18 years of age,” the statute allows the court to “exclude from
the proceedings while the victim is testifying, all persons, who,
in the opinion of the court, do not have a direct interest in the
case, except for the media.”
For a denitive application of the statute, see People v.
Falaster, 173 Ill. 2d 220, 225-28 (1996) (holding that “the more
stringent limitations established by the United States Supreme
Court for the closure of judicial proceedings to the press and
public” did not apply (id. at 226-27), that section 115-11 is
constitutional, and that the trial court did not err in excluding
from the courtroom three persons who were not members of the
defendant’s immediate family (two nephews of the defendant
and the grandfather of one of the nephews), and because the
trial court did not close the trial but merely removed spectators
during the testimony of the 14-year-old victim and did not
exclude members of the press, the trial court thus complied
with the statute’s requirements related to the testimony of that
COMMENTARY CONTINUED
173ARTICLE VI. WITNESSES RULE 615
14-year-old girl, who was sexually abused by her father begin-
ning when she was eight or nine years old).
See also People v. Martinez, 2021 IL App (1st) 172097,
¶¶ 47-58 (applying Falaster in holding that, although the trial
court did not identify the identity of persons excluded from
the courtroom, the defendant did not allege that the excluded
persons had a direct interest in the case, thus distinguishing the
holding in the appellate court decision in People v. Schoonover,
2019 IL App (4th) 160882).
In its review of the appellate court decision referred to above,
in People v. Schoonover, 2021 IL 124832, the supreme court
reversed the appellate court’s holding. The issue before the
court, as framed by the appellate court, was whether the trial
court had violated section 115-11 by not making an express
determination as to whether each spectator excluded from the
courtroom had a direct interest in the case during the testimony
of the under-13-years-of-age girl who was a victim of a number
of counts of predatory criminal sexual assault of a child. In its
de novo review of whether the defendant’s constitutional right
to a public trial under the sixth amendment had been violated,
the supreme rst noted that because the defendant had forfeited
the issue, it needed to determine whether plain error could be
applied. In reversing the convictions, the appellate court had
held that second-stage plain error had occurred. Citing and
adhering to Falaster, the supreme court pointed out that, as in
Falaster, the trial court had temporarily removed spectators and
did not close the trial, the persons excluded were not imme-
diate family members of the defendant and thus did not have
a direct interest in the outcome of the case, and the court did
not impose any restrictions on the media, who were allowed
continued access to the proceedings. Schoonover, at ¶ 34. The
supreme court noted that the trial court had inquired about the
identity of persons in the courtroom and received no response
from either side. Id. at ¶ 38. Thus, there was no basis for con-
cluding that close family members had been excluded from the
courtroom. In construing section 115-11, the court held that,
contrary to the appellate court’s holding, “nothing in the statute
requires an express nding to be made” (id. at ¶ 40), and thus
the trial court did not violate section 115-11. Citing relevant
United States Supreme Court decisions not inconsistent with
its holdings, in reversing the decision of the appellate court,
the supreme court held that its inquiry under the plain error
doctrine had ended.
cloSed circuit televiSion proceedingS
Although it is not directly related to this rule—but with rele-
vance related to the right to confrontation in a criminal case—it
should be noted that section 106B-5 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/106B-5) allows testimony
“taken outside the courtroom and shown by means of a closed
circuit television” for “[t]estimony by a victim who is a child
or a person with a moderate, severe, or profound intellectual
disability or a person affected by a developmental disability”
victimized by listed sexual offenses or aggravated battery or
aggravated domestic battery. This provision was held to satisfy
confrontation clause requirements in both Maryland v. Craig,
497 U.S. 836, 851-52 (1990) and People v. Cuadrado, 214 Ill.
2d 79, 89 (2005).
In People v. Martinez, 2021 IL App (1st) 172097, ¶¶ 38-46
(cited supra for a different reason), conceding that the statute’s
proper procedure was not followed because, in this bench trial,
the victim testied in the courtroom, while the defendant was
placed in a separate room where he viewed the victim’s closed
circuit testimony, the appellate court held that the defendant
was “unable to show that his absence from the courtroom
resulted in an unfair proceeding or caused him to be denied an
underlying substantial constitutional right.” Id. at ¶ 45).
deciSionS related to a trial judge’S review of evidence, outSide
the preSence of the defendant, in a criminal caSe
Recent appellate court decisions related not to the closure
of the courtroom (where typically the sixth amendment right to
a public trial applies) are noteworthy. For example, in People
v. Lucas, 2019 IL App (1st) 160501, a majority of a panel of the
appellate court held reversible error occurred where, in a bench
trial that included charges for resisting arrest and DUI, the trial
court viewed a video recording of the defendant’s trafc stop in
chambers in the presence of the prosecutor and defense coun-
sel, but outside the presence of the defendant. The majority
noted that although she understood that the trial court would
view the video in the manner described, the defendant was
not informed that she had a right to be present, that she never
COMMENTARY CONTINUED
174RULE 615 ARTICLE VI. WITNESSES
COMMENTARY CONTINUED
waived that right, and that as a result she “was not afforded the
opportunity to confront the evidence against her and aid in her
defense.” Id. at ¶ 15. Over the dissent, the majority held that
her due process right to be present for a critical stage of the
proceedings resulted in second prong plain error.
Later, in People v. Groebe, 2019 IL App (1st) 180503,
after a police ofcer testied in a bench trial concerning the
underlying facts related to the charge of aggravated DUI that
“he had reviewed the video before his testimony and that the
video represented a true and accurate recording of the trafc
stop and defendant’s performance of the eld sobriety tests”
(id. at ¶ 37), during a break in the trial the trial court viewed
the video recording of the trafc stop and eld sobriety tests in
chambers. Relying in part on Lucas, the defendant contended
that her right to a public trial had been violated. The appellate
court disagreed. Reasoning that photographs frequently are not
presented in open court and that the police ofcer had laid a
sufcient foundation for the admission of the video, and noting
that—unlike in this case—in Lucas, the basis of the court’s
decision was “the impact on the defendant’s ability to aid in
her own defense and to decide whether to testify” (id. at ¶ 49),
the appellate court held that the trial court had not denied the
defendant her right to a public trial.
In a case cited for different reasons a couple of times supra,
in People v. Martinez, 2021 IL App (1st) 172097, ¶¶ 59-69, a
bench trial involving sexual abuses of a child, the trial court
announced that it would review the victim sensitive report
(VSI) taken by a licensed clinical social worker, a report already
placed in evidence through the testimony of the social worker,
and already reviewed by the defendant and his counsel. In
rejecting the defendant’s contention on appeal that, by review-
ing the VSI out of the courtroom, the trial court had violated
the defendant’s right to a public trial or his right to be present
for all critical stages of his trial, the appellate court adopted the
rationale of Groebe and, as that case had done, distinguished
the holding in Lucas.
For a recent appellate court decision fully analyzing the
decisions provided above and other decisions related to a trial
judge’s review of evidence outside the defendant’s presence
and without the defendant’s explicit approval, see People v.
Richardson, 2021 IL App (1st) 190821, ¶¶ 45-62. In that case,
where, under plain error review after a conviction and sentence
for two counts of aggravated battery, the defendant contended
that, though his attorney had waived his presence, he did not
knowingly and voluntarily waive his right to be present when
the trial court viewed videotaped evidence in camera during a
pretrial section 115-10 (725 ILCS 5/115-10) hearing regarding
the admissibility of a six-year-old boy’s outcry statements, the
appellate court held that the defendant’s claim did not involve
a critical stage of his trial, where his attorney had waived his
presence and, during the trial, the defendant heard the evidence
considered by the trial court during its pretrial review.
deciSion on the failure of the trial court to poll a Single juror
Another decision not directly involved in this or any other
rule, but one deserving of attention is People v. Jackson, 2021 IL
App (1st) 180672, PLA allowed on September 29, 2021, Docket
No. 127256. (For another unrelated but interesting discussion
related to responses of jurors during polling by the trial court,
see the discussion supra under the heading entitled Decisions
Related to the Polling of Jurors in the Author’s Commentary on
Fed. R. Evid. 606(b).)
In Jackson, the defendant was found guilty by a jury of rst
degree murder of one victim and attempted armed robbery of
another victim. After the jury returned its signed verdict forms,
defense counsel asked the trial court to poll the jury. Eleven
jurors were polled and answered that this was and is their
verdict. The court then dismissed the jury without polling the
twelfth juror. This failure was not preserved for appeal by the
defendant through objection and a posttrial motion.
Reviewing the issue under the plain error doctrine, a major-
ity of the appellate panel reversed the convictions, holding that
“leaving out of the poll of the jury even one juror calls into
question the integrity of the judicial process and, so, constitutes
second-prong plain error.” Id. at ¶ 3. In making its determi-
nation, the majority disagreed with the holding in People v.
McGhee, 2012 IL App (1st) 093404, where the appellate court
denied relief in the defendant’s postconviction proceeding
which was based on ineffective assistance of defense counsel
for failing to object after counsel had asked for polling of the
jury and the trial court did not do so. The majority also found
People v. Sharp, 2015 IL App (1st) 130438, which involved an
incomplete poll, unhelpful based on its reliance on McGhee.
The dissenting justice relied on McGhee and Sharp, and con-
tended that the trial court’s error did not rise to the level of
second-prong error,
As noted, the supreme court has allowed leave to appeal in
Jackson, so it will have the nal word on whether second-prong
plain error occurred in that case.
COMMENTARY CONTINUED
177ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 701
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE VII. OPINIONS AND EXPERT WITNESSES
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the wit-
ness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness’ tes-
timony or the determination of a fact in issue, and (c)
not based on scientic, technical, or other specialized
knowledge within the scope of Rule 702.
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientic, technical, or other spe-
cialized knowledge within the scope of Rule 702.
Author’s Commentary on Ill. R. Evid. 701
IRE 701 is identical to the federal rule before the latter’s
amendment, solely for stylistic purposes, effective December
1, 2011.
general principleS
For application of the rule, see Freeding-Skokie Roll-Off Serv.,
Inc. v. Hamilton, 108 Ill. 2d 217 (1985) (formally adopting FRE
701 as well as FRE 704, the latter of which allows admission of
lay opinion evidence even where such evidence embraces an
ultimate issue to be decided by the trier of fact; and noteworthy
for its holding that lay opinion evidence is not “helpful” when
the witness can adequately communicate to the jury the facts
upon which the opinion is based, so that the jury can draw its
own inferences and conclusions); People v. Novak, 163 Ill. 2d
93 (1994) (discussing lay opinion evidence, while holding that
opinions of witnesses were improperly admitted as lay opin-
ions but properly admitted as expert opinions); People v. Sykes,
2012 IL App (4th) 111110 (relying on Freeding-Skokie Roll-Off
in holding impermissible the testimony of a witness about what
he saw on a videotape shown to the jury, where he had not
seen the events depicted on the tape and was relying on a
clearer version of an original videotape that he had reviewed
but which had not been admitted into evidence).
Typical subjects for lay opinion evidence include whether a
vehicle was going fast or slow (see e.g., Hester v. Goldsbury, 64
Ill. App. 2d 66 (1965)) and whether a person was happy, sad,
angry, or inebriated.
PeoPle v. thomPson: StandardS for lay opinion identification
evidence from photoS or video
The current and growing prevalence of surveillance cameras
is bound to result in many cases where a person is depicted
in the commission of an offense or in negligent conduct or in
doing something that provides conclusive or circumstantial
evidence of guilt or liability. In such cases, lay opinion iden-
tication testimony is likely to be offered for the purpose of
identifying persons depicted in a photo or a video. The supreme
court decision in People v. Thompson, 2016 IL 118667,
provides essential standards for the admission of lay opinion
identication testimony in such cases.
In Thompson, a surveillance camera produced video of a
man stealing anhydrous ammonia, an ingredient for manufac-
turing methamphetamine, from the tanks of a farm supply com-
pany. During his jury trial for violating the Methamphetamine
Control and Community Protection Act, a layperson and law
enforcement ofcers gave testimony identifying the defendant
178RULE 701 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
as the person depicted in the video or in still images of the
video. Defense objections to this evidence were overruled.
On appeal from the defendant’s conviction focused on the
admissibility of the identication evidence, the appellate court
relied on the two-part test furnished by the earlier decision in
People v. Starks, 119 Ill. App. 3d 21 (1983): (1) that the witness
must have been familiar with the defendant before the offense,
and (2) that the testimony must resolve the issue of identica-
tion without invading the province of the trier of fact, giving as
examples of non-invasion: where a defendant’s appearance has
changed since the time of the recording or where the recording
is unclear or a limited depiction. People v. Thompson, 2014 IL
App (5th) 120079, ¶ 29. The appellate court held that Starks’
rst requirement had been satised, but it held that none of the
witnesses had a better perspective than the jury to interpret the
surveillance recording and none had alluded to a change in
appearance nor was there any evidence of such a change in the
record. People v. Thompson, 2014 IL App (5th) 120079, ¶ 33.
The appellate court thus concluded that neither the witnesses
who identied the defendant from a photo or from the video
had any better ability to identify the defendant than did the
jury. The appellate court therefore held that the lay opinion
identication testimony had been improperly admitted for it
had invaded the province of the jury.
In its review of the appellate court decision, the supreme
court rst observed that IRE 701 is modeled after the federal
rule, and therefore the court “may look to federal law, as well as
state decisions interpreting similar rules for guidance.” People
v. Thompson, 2016 IL 118667, ¶ 40. Accordingly, the supreme
court engaged in a thorough analysis of federal and out-of-state
decisions that had addressed the factors relevant to the type
of identication evidence presented in this case, drawing the
following conclusions:
“Based on the above principles, we now hold
that opinion identication testimony is admissible
under Rule of Evidence 701 if (a) the testimony is
rationally based on the perception of the witness
and (b) the testimony is helpful to a clear under-
standing of the witness’s testimony or a determi-
nation of a fact in issue. Lay opinion identication
testimony is helpful where there is some basis for
concluding the witness is more likely to correctly
identify the defendant from the surveillance
recording than the jury. A showing of sustained
contact, intimate familiarity, or special knowledge
of the defendant is not required. Rather, the witness
must only have had contact with the defendant,
that the jury would not possess, to achieve a level
of familiarity that renders the opinion helpful.
“We adopt a totality of the circumstances approach
and agree with the above authorities that the fol-
lowing factors should be considered by the circuit
court in determining whether there is some basis for
concluding the witness is more likely to correctly
identify the defendant: the witness’s general famil-
iarity with the defendant; the witnesses’ familiarity
with the defendant at the time the recording was
made or where the witness observed the defendant
dressed in a manner similar to the individual
depicted in the recording; whether the defendant
was disguised in the recording or changed his/her
appearance between the time of the recording and
trial; and the clarity of the recording and extent
to which the individual is depicted. However, the
absence of any particular factor does not render
the testimony inadmissible.
“Accordingly, we decline to adhere to the rules
for admission of lay identication testimony set
forth in Starks, which the appellate court relied
on. The two-part test of Starks is at odds with the
great weight of authority. Specically, as stated
above, a witness need not have familiarity with the
defendant before or at the time of the recording
to testify. Moreover, we reject Starks to the extent
it limits identication testimony solely to those
instances where either the defendant’s appearance
has changed between the time of the recording
and trial or where the recording lacks clarity to
render such testimony admissible.
179ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 701
COMMENTARY CONTINUED
“We also agree with the majority view that the
extent of a witness’s opportunity to observe the
defendant goes to the weight of the testimony, not
its admissibility. Moreover, review of the circuit
court’s decision to admit lay opinion identication
testimony is reviewed for an abuse of discretion.
“Thus, we hold that lay identication testimony
is admissible under the foregoing principles, with
the proviso, however, ‘it may be excluded if its
probative value is substantially outweighed by
the danger of unfair prejudice.’ Illinois Rule of
Evidence 403 (eff. Jan. 1, 2011). If such testimony
is admitted under the above standards, it would
not invade the province of the jury because the
jury is free to reject or disregard such testimony
and reach its own conclusion regarding who is
depicted in the surveillance recording.” People v.
Thompson, 2016 IL 118667, ¶¶ 50-54.
After spelling out the foregoing principles that relate to lay
witness identication evidence generally, the supreme court
then addressed separate issues raised by the appellate court
decision: the admissibility of the identication testimony of
law enforcement ofcers, and under what circumstances
law enforcement ofcers may provide such testimony. The
relevance of these issues is based on concern about possible
prejudice to defendants due to the difculty of “complete and
uninhibited cross-examination regarding the witness’s famil-
iarity” with the defendant, which “could reveal information
about the defendant’s criminal past and unfairly cause the jury
to focus on that.” People v. Thompson, 2016 IL 118667, ¶ 55.
On this issue, too, the supreme court examined the decisions
of numerous federal courts of appeal, resulting in the following
principles:
“We hold, therefore, that when the State seeks to
introduce lay opinion identication testimony from
a law enforcement ofcer, the circuit court should
afford the defendant an opportunity to examine
the ofcer outside the presence of the jury. This
will provide the defendant with an opportunity to
explore the level of the witness’s familiarity as well
as any bias or prejudice. Moreover, it will allow the
circuit court to render a more informed decision as
to whether the probative value of the testimony is
substantially outweighed by the danger of unfair
prejudice. Although a witness may identify himself
as a law enforcement ofcer, his testimony involv-
ing his acquaintance with the defendant should
consist only of how long he knew the defendant
and how frequently he saw him or her. Moreover,
to lessen any concerns regarding invading the
province of the jury or usurping its function, the
circuit court should properly instruct the jury,
before the testimony and in the nal charge to the
jury, that it need not give any weight at all to such
testimony and also that the jury is not to draw any
adverse inference from the fact the witness is a
law enforcement ofcer if that fact is disclosed.”
People v. Thompson, 2016 IL 118667, ¶ 59.
After furnishing the guiding principles for admission of
lay identication evidence—both for lay persons and for
law enforcement ofcers—the supreme court ruled as to the
admissibility of the evidence of the four witnesses who had
provided identication testimony in the case at bar. It held that
the testimony of a lay witness met the standards it had supplied,
that two of the law enforcement ofcers had met the appli-
cable standards but their testimony was erroneously allowed
because the trial court had not engaged in the precautionary
procedures required for law enforcement witnesses, and that
there had been an inadequate foundation for the admission of
the testimony of the third law enforcement ofcer. Despite the
erroneous admission of the testimony of the law enforcement
ofcers, the supreme court found harmless error based on
the strength of the State’s case, which included incriminating
admissions by the defendant. The defendant’s conviction was
afrmed.
application of thomPson
People v. Mister, 2016 IL App (4th) 130180-B, is an opinion
issued by the appellate court after the supreme court issued a
supervisory order directing the court to reconsider its earlier
decision in light of the Thompson decision. In that case, a
180RULE 701 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
surveillance shift supervisor of a Joliet gambling casino testied
about numerous surveillance videos, in the casino and in a
parking lot, that depicted the activities of the defendant and
another related to an armed robbery of a victim who had won
a sizable amount of money in the casino. In its earlier decision,
the court had declined to follow the appellate court’s decision
in Thompson. After its own review following remand, the
appellate court concluded that its previous legal ndings were
consistent with those of the supreme court in Thompson and,
with the supreme court’s additional guidance, it determined
that, although he had not seen the actual events depicted in the
videos in real time, the surveillance shift supervisor’s testimony
about what he saw based on his repeated viewings of the
videos was rationally based on his perception of them and was
helpful to the trier of fact. His testimony was therefore properly
admitted under IRE 701.
In People v. Gharrett, 2016 IL App (4th) 140315, the appel-
late court relied on the principles in Thompson, applying them
not for the identication of a person, but for the identication
of a partially obstructed object in a person’s hand. In that case,
a prosecution for burglary, a witness testied that a depiction
in an ofce video admitted in evidence “was consistent” with
the defendant’s holding a wad of money that the witness had
previously placed in a drawer in the ofce. The appellate court
upheld the admission of that testimony as lay witness opinion
evidence that was rationally based on the perception of the
witness and helpful to the jury’s determination of a fact in issue.
In People v. Stitts, 2020 IL App (1st) 171723, without an
indication whether the trial occurred before or after the
Thompson decision, the appellate court found that the
trial court had failed to follow the procedures mandated by
Thompson. Although the defendant had forfeited the issue,
the appellate court applied plain error analysis, held that the
evidence was closely balanced, and considered the issue.
In this case involving a shooting, where part of the evidence
included a detective testifying that his review of surveillance
tape showed the defendant holding a gun and eeing from the
scene of the offense with others, the court held that the trial
court failed to afford the defendant an opportunity to examine
the ofcer outside the presence of the jury, so that defendant’s
counsel could determine the witness’s level of familiarity with
the defendant and any other bias or prejudice.
Silent witneSS theory of admiSSibility
Though not directly related to lay witness testimony, in
considering the admission of photos and videos generally, it
is important to be aware of the “silent witness” theory, under
which “a witness need not testify to the accuracy of the
image depicted in the photographic or videotape evidence
if the accuracy of the process that produced the evidence is
established with an adequate foundation. In such a case, the
evidence is received as a so-called silent witness or as a witness
which speaks for itself.” People v. Taylor, 2011 IL 110067, ¶ 32
(citations and internal quotation marks omitted). For a discus-
sion of Taylor, where the issues were unrelated to lay opinion
testimony under IRE 701, see the Author’s Commentary on Ill.
R. Evid. 104(a).
teStimony about ultimate iSSue
IRE 704 provides the rule that allows the admission of lay
opinion evidence regardless of whether that opinion embraces
an ultimate issue to be decided by the jury. In People v.
Richardson, 2013 IL App (2d) 120119, the appellate court cited
IRE 701 in holding that a police ofcer was properly allowed
to provide lay opinion evidence that the defendant wore a vest
that was “body armor” (an element of the charged offense)
under his clothing, based upon his personal experience as a
police ofcer. Responding to the defendant’s contention that
the ofcer improperly provided an opinion on an ultimate
issue in the case, the court cited IRE 704 that “[t]estimony in
the form of an opinion or inference otherwise admissible is
not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” Id. at ¶ 19.
diStinctiveneSS and SimilaritieS in handwriting
In People v. Jaynes, 2014 IL App (5th) 120048, ¶¶ 50-53,
the appellate court held that the trial court did not abuse its
discretion in overruling the defendant’s objection to allowing
a detective to testify as to his opinion regarding distinctiveness
and similarities in handwriting when he possessed no hand-
writing-comparison qualications, and in allowing, under IRE
701, the admission of the detective’s testimony that certain
letter “E”s on labels on compact discs looked similar. The court
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181ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 701
noted that the detective did not offer any conclusions about
whether the “E”s were written by the defendant, and that his
opinion satised the requirements of IRE 701.
lay opinion evidence on the credibility of a witneSS iS improper
As indicated infra, expert opinion testimony about the cred-
ibility of a witness is not permitted in Illinois. Also prohibited is
lay opinion evidence on the credibility of a person outside the
context of a trial or other court proceeding. People v. O’Donnell,
2015 IL App (4th) 130358, is illustrative. In that case, a police
ofcer testied that the defendant, who was on trial for the
offense of driving under the inuence, showed deception about
not being the driver of his abandoned wrecked car when the
ofcer interrogated him at the police station, because “[h]e
looked away, and he looked down” when she asked him if he
was the driver of the car. Citing its earlier decision in People
v. Henderson, 394 Ill. App. 3d 747 (2009), which had referred
to similar evidence as “human lie detector” testimony, the
appellate court quoted a sentence from that opinion in holding
that the testimony was improper: “Using such a witness as a
‘human lie detector’ goes against the fundamental rule that
one witness should not be allowed to express his opinion as
to another witness’s credibility.” O’Donnell, 2015 IL App (4th)
130358, ¶ 32, quoting Henderson, 394 Ill. App. 3d at 753-54.
The takeaway: It is proper for a witness to testify that a
person “looked away, and he looked down;” but it is not proper
for the witness to state an opinion that the person lied or was
being deceptive.
previouS opinionS on credibility by non-expert witneSSeS do
not conStitute improper lay opinionS
Although a witness is not permitted to provide opinion
testimony concerning another witness’s credibility, a number
of Illinois decisions hold that testimony about past lay opin-
ions concerning a criminal defendant’s credibility or guilt—in
contrast to testimony concerning present opinions—does not
constitute improper opinion evidence. People v. Hanson, 238
Ill. 2d 74 (2010), presents a prime example of that principle.
In that case, the State was allowed to admit evidence that the
defendant’s sister told a detective that she believed the defen-
dant had committed the murder of the four victims in the case,
and that the detective informed the defendant that his sister
“thinks you did this.” Pointing out that neither the detective
nor the sister in this case testied that they believed the defen-
dant was guilty, and that no evidence was admitted about the
sister’s present opinion of the defendant’s guilt or innocence,
the supreme court rejected the defendant’s contention that the
admitted testimony constituted improper opinion evidence.
Rather, the court concluded “that the evidence was relevant
in that it provided some context for why the investigation was
focusing on defendant.” As for the defendant’s contention that
the testimony constituted inadmissible hearsay, the court stated:
“In this case, the State did not seek to admit [the
sister’s] statements to prove that defendant was
guilty or even to prove that [the sister] thought
defendant was guilty. Instead, [the detective’s]
testimony provided context for his investigation
and for testimony pertaining to defendant’s state
of mind based on defendant’s response to [the
detective’s] questioning.”
Decisions applying Hanson include People v. Degorski,
2013 IL App (1st) 100580, where the witness (then an assistant
state’s attorney and at the time of trial a judge) testied in a
non-responsive way that “his statement to me was reliable,”
in response to a cross-examination question about a statement
that the witness took from the defendant; People v. Martin,
2017 IL App (4th) 150021, where, having responded to a car in
a ditch off the interstate and having been told by the defendant
that his wife had been driving and that she had hailed a car to
seek help, a State trooper testied that at that time he believed
that the defendant had been driving and that the defendant’s
story did not make sense to him; and People v. Whiteld, 2018
Ill App (4th) 150948, ¶¶ 58-59, where questions and statements
made by police ofcers to the defendant during a videotaped
interview did not constitute improper lay witness opinions on
the defendant’s credibility, were helpful to the jury by placing
the defendant’s statements in context and were not testimony,
and did not provide any present opinion from the investigating
ofcers.
Both Degorski and Martin distinguished the contrary hold-
ing in People v. Crump, 319 Ill. App. 3d 538 (2001), where
in response to the State’s question, “did you have reason to
COMMENTARY CONTINUED
182RULE 701 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
believe that the defendant in this case committed this offense?”
a police ofcer responded, “Yes, I did.” The primary distinction
made by the two cases was that Crump predated Hanson, and
was inconsistent with its holding.
People v. Suggs, 2021 IL App (2d) 190420, is consistent with
the holdings in Crump and Degorksi, in holding that a police
ofcer’s testimony about his opinion at the time of the alleged
offense was proper, but it reached a different decision based on
the ofcer’s further testimony that may have communicated his
present opinion about the guilt of the defendant. In that domes-
tic battery prosecution, defendant’s mother, who had called
911, told police that defendant (her daughter) had stopped her
from falling by grabbing her wrist, thereby causing ngernail
punctures in three places on her daughter’s wrist. She provided
the same testimony at her daughter’s jury trial. A police ofcer,
who responded to the 911 call, testied in response to the
State’s question that, after speaking with defendant’s mother, he
had the opinion that a crime had occurred. Then, in response to
the State’s next question, “And what crime was that?” the ofcer
testied, “Domestic battery.” In its plain error review, after dis-
cussing Crump and Degorski, the appellate court reasoned that
the ofcer’s rst response was properly in the past tense, when
the ofcer formed the opinion at the scene; but the response
to the second question, the court reasoned, meant that “the
jury almost certainly would have understood that language as a
reference to an opinion [the ofcer] held when he testied.” Id.
at ¶ 18. Based on its conclusion that the evidence was close,
the court reversed defendant’s conviction and remanded the
case to the circuit court for a new trial.
diStinguiShing lay opinion evidence from expert opinion evidence
The distinction between lay and expert opinion evidence
is sometimes difcult to determine—especially in relation to
police ofcer testimony. In United States v. Jones, 739 F.3d
364 (7th Cir. 2014), the Seventh Circuit pointed out that it had
discussed the distinction in numerous opinions and provided
the following general principles:
“Lay testimony is based upon one’s own observa-
tions, with the classic example being testimony
as to one’s sensory observations. *** [T]he Rule
701 standard is essentially an importation of the
personal knowledge requirement. In contrast,
testimony moves from lay to expert if an ofcer
is asked to bring her law enforcement experience
to bear on her personal observations and make
connections for the jury based on that specialized
knowledge. [Citation.] This differentiation arises
frequently in cases in which ofcers testify as to
the meaning of code words used in drug transac-
tions.” Jones, 739 F.3d at 369.
In Jones, the issue before the court was whether a police
ofcer’s testimony about a dye pack that had exploded after
a bank robbery was lay opinion evidence or expert opinion
testimony. If the latter, the testimony may have been incompe-
tent because the witness had not been properly qualied and
because the government had failed to make proper disclosure.
Applying the principles in the quote above, the court con-
cluded that the ofcer’s testimony about the aftermath of an
exploding dye pack—something he had witnessed on three to
ve occasions—clearly constituted lay opinion evidence. On
the other hand, the ofcer’s testimony—“that the dye packs
were all manufactured by one company, that they contained
a timer which could be set to detonate the dye pack within 10
to 30 seconds of exiting the bank, that the dye packs instantly
burned at 400 degrees, and that timers were set based upon
the environment of the bank so as to ensure they would go
off shortly after the exit from the bank so as to maximize the
possibility for witnesses outside the bank”—“was based on
technical, specialized knowledge obtained in the course of his
position, and was not based on personal observations acces-
sible to ordinary persons,” and therefore fell within Rule 702.
Jones, 739 F.3d at 369.
United States v. Malagon, 964 F.3d 657 (7th Cir. 2020), also
illustrates the difference between expert opinion testimony and
lay opinion testimony. In that case, the Seventh Circuit relied
on the training and experience of a DEA Task Force Ofcer to
provide expert testimony concerning drug trafcking practices
and the use of drug codes. The Seventh Circuit rejected the
defendant’s contention that, though that expert witness never
referred to his “training and experience” to decode narcotics
code words, an examination of the transcript of the ofcer’s tes-
COMMENTARY CONTINUED
183ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 701
COMMENTARY CONTINUED
timony showed that he had indeed relied on such experience.
As for another DEA ofcer’s evidence, admitted as lay opinion
testimony, the Seventh Circuit reasoned that the ofcer:
“testied as to the meaning of the words used in a
conversation between himself and [the defendant].
As a party to the conversation, his testimony as to
the meaning of the words used by the parties in the
conversation falls within Rule 701 as lay testimony
in that it is rationally based on his perception as a
witness and helpful to understanding his testimony
and determining a fact in issue. Nothing in his
testimony indicates that his testimony is based on
specialized knowledge, as opposed to his under-
standing of the conversation as a participant in it.”
Malagon, 964 F.3d at 662.
dual-role teStimony
The Seventh Circuit’s decision in United States v. Jett, 908
F.3d 252 (7th Cir. 2018) addresses in depth the problems
associated with “dual-role testimony” (a witness testifying
from personal contemporaneous or past observations and
also providing expert opinions), in the context of an FBI
agent’s testimony interpreting certain words in text messages
between defendants. As in Jones, the testimony of the agent
did not distinguish between lay or expert opinion evidence.
Acknowledging inconsistencies in prior Seventh Circuit
decisions, the court provided precautions to be taken by
district court judges in admitting such evidence, as well as a
recommended jury instruction. Jett, afrmed based on plain
error review, is recommended reading when such dual-role
testimony is involved.
A subsequent dual-role-testimony case, United States v.
Thomas, 970 F.3d 809 (7th Cir. 2020), heavily relies on Jett,
and is likewise recommended reading. In that case, an FBI spe-
cial agent testied concerning his knowledge of the recovery
of two rearms and a bag of methamphetamine from the glove
compartment of the defendant’s car and he also offered his
opinions about the signicance of the presence of the rearms
related to drug dealing. As in Jett, despite the district court’s
erroneous failure to follow the correct procedures for admitting
the dual-role testimony, the convictions were afrmed on plain
error review.
For Illinois procedures, even more highly recommended for
reading is the decision of the Illinois Appellate Court in People
v. Loggins, 2019 IL App (1st) 160482, ¶¶ 76-106. There, to
address the issue of whether the defendant possessed cocaine
with the intent to deliver, a police ofcer testied to opinions
about items found in the defendant’s house where cocaine was
located: several hundred small plastic bags, two blenders, and
a bottle of inositol (a dietary supplement used to cut cocaine).
On appeal, the defendant contended that the ofcer’s testimony
about the paraphernalia obtained from his house—offered as
lay opinions—constituted expert opinion testimony and thus
was improperly admitted, because the State failed to lay a
proper foundation for such testimony. Noting that IRE 701 is
substantively identical to its federal counterpart, the appellate
court relied on numerous Seventh Circuit opinions in agreeing
with the defendant’s contention. The standards applied by the
appellate court for distinguishing lay opinion evidence from
expert opinion evidence may be summarized as follows:
“To count as lay opinions, they must be based on
the ofcer’s personal observations of the underly-
ing events, and they cannot require the ofcer to
draw on any specialized knowledge or expertise.
They must be opinions that anyone in the same
position, not just a trained ofcer, would have
been qualied to offer. *** If the opinion rests in
any way on the ofcer’s specialized knowledge,
it is expert testimony, and it must meet the foun-
dational requirements of Rule 702.” Loggins, at
¶¶ 88, 89 (interior quotation marks and citations
omitted).
In applying those standards, the appellate court held that
the ofcer’s opinions about plastic bags, blenders, and inositol
as evidence of the defendant’s intent to deliver cocaine were
based, not on what the ofcer observed in the defendant’s
house (which would have satised Rule 701’s requirement that
the opinions were “rationally based on the perception of the
witness”), but rather were based on the ofcer’s specialized
knowledge or experience as governed by Rule 702. The court
184RULE 701 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
emphasized that it is commonplace for law-enforcement of-
cers to testify as dual-capacity witnesses, but:
“there is no such thing as dual capacity testimony.
Any given piece of testimony is either lay or expert
testimony; it cannot be both. Rule 701 says this
plainly: Lay opinions and inferences are ‘limited
to’ those which are ‘not based on scientic,
technical, or other specialized knowledge within
the scope of Rule 702.’ [Citing IRE 701(c)]. If an
opinion falls within the scope of Rule 702, it is ‘by
denition outside of Rule 701.’” Id. at ¶ 103 (all
emphases added by the court).
Despite its holding that the ofcer’s opinions on the para-
phernalia were improperly admitted, the appellate court held
that the error was harmless, because the defendant failed to
object and, if he had, the ofcer would have been qualied as
an expert. Id. at ¶¶ 108-114.
In People v. Price, 2021 IL App (4th) 190043, a prosecution
for rst degree murder, a paramedic with 20 years experience
testied that the victim’s body had obvious rigor mortis. Over
the defendant’s objections that rigor mortis is a specialized
term that required expert testimony and that the State had
not provided the foundation for such testimony, the trial court
admitted the testimony.
On appeal, the appellate court afrmed the admission of
the term. The court reasoned that the term could have been
considered a lay opinion, reasoning that the paramedic had
not explained what he meant by the term, and a “lay person’s
understanding of the term rigor mortis is a stiffness of a body
that sets in after the person has died, and others testied that
[the victim’s] body was cold and stiff.” Id. at ¶ 179. But because
“the State offered [the paramedic’s] training and experience
as foundation for his observation that the body had rigor
mortis instead of simply rephrasing the question to have [the
paramedic] describe the body’s condition” (id. at ¶ 181), the
court reasoned that the paramedic “was qualied based on his
training and experience to offer testimony about signs that a
person is dead, and he testied he was trained that rigor mortis
is one of these signs.” Id. at ¶ 183. The court further reasoned
that “[e]ven if improperly admitted, the testimony was not
prejudicial,” because the paramedic “did not testify what ‘rigor
mortis’ meant at all, much less in a technical, medical sense.
He further did not say how it occurred or whether it meant a
person had been dead for any particular amount of time. In
fact, [the paramedic] disclaimed any knowledge about these
latter subjects.” Id. at ¶ 184.
expert opinion evidence unneceSSary in determining whether
motoriSt waS under the influence of drugS
In the supreme court decision in People v. Gocmen, 2018
IL 122388, involving the statutory rescission of the defendant’s
suspension of his driver’s license for refusing to submit to chem-
ical testing, the primary issue was whether an inexperienced
police ofcer had reasonable grounds to arrest the defendant.
Reversing the judgments of the circuit and appellate courts,
which had held that expert opinion evidence was necessary
in determining whether a motorist was under the inuence of
drugs, the supreme court held that there was no requirement
that a police ofcer “could not opine as to whether a motorist
was under the inuence of drugs without being qualied as an
expert witness.” Gocmen, at ¶ 38. The court made its holding
explicit:
“Expert testimony is not required in every case for
an ofcer to testify to his opinion that a motorist
was under the inuence of drugs based on his
inference from the totality of the circumstances.
When, as here, the totality of circumstances at the
time of the arrest is sufcient to lead a reasonably
cautious person to believe that an individual was
driving under the inuence of drugs, probable
cause exists.” Id. at ¶ 62.
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185ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
Rule 702. Testimony by Expert Witnesses
A witness who is qualied as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientic, technical, or other special-
ized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;
(b) the testimony is based on sucient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 702. Testimony by Experts
If scientic, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualied as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise. Where an expert witness testies to an
opinion based on a new or novel scientic methodology
or principle, the proponent of the opinion has the bur-
den of showing the methodology or scientic principle
on which the opinion is based is suciently established
to have gained general acceptance in the particular eld
in which it belongs.
Committee Comment to Rule 702
Rule 702 conrms that Illinois is a Frye state. The second
sentence of the rule enunciates the core principles of the
Frye test for admissibility of scientic evidence as set forth in
Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d
63, 767 N.E.2d 314 (2002).
Author’s Commentary on Fed. R. Evid. 702
FRE 702 differs from its Illinois counterpart. The difference is
found in FRE 702(b), (c), and (d), which have not been adopted
in Illinois. Those three subdivisions—which originally were
numbered (1), (2), and (3), the current letters of the alphabet
having resulted from amendments solely for stylistic purposes
effective December 1, 2011— were added in 2000 in afr-
mation of the earlier Daubert test, based on the 1993 U.S.
Supreme Court decision discussed just below. Before its year
2000 amendment, FRE 702 consisted of a single sentence that
was identical to the rst sentence of IRE 702. Under the test
supplied by Daubert—together with what is now FRE 702(b),
(c), and (d)—the trial court acts as a gate-keeper whose role is
to determine whether the expert’s testimony rests on a reliable
foundation and is relevant to the facts at issue.
Illinois has not adopted the Daubert test. It remains a Frye
state—providing a test that applies only to new or novel sci-
entic methodologies or principles and is dened in the nal
sentence of IRE 702. Where the Frye test has been satised in
Illinois, subdivisions (b), (c), and (d) of the federal rule have
application only for the determination by the trier of fact the
weight to be given to the expert’s testimony, not for the trial
judge’s acting as a gate-keeper in determining admissibility in
the rst instance.
An understanding of the rules relating to expert opinion
evidence in the Federal Rules of Evidence begins with three
key decisions of the United States Supreme Court, sometimes
referred to as the “Daubert trilogy.”
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
186RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
DaUbert v. merrell DoW PharmaCeUtiCals, inC.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), the United States Supreme Court held that the
general acceptance test of Frye v. United States, 293 F. 1013
(D.C. Cir. 1923) was superseded by the adoption of FRE 702,
which at the time was a single sentence identical to the rst
sentence of current IRE 702. Interpreting the rule as providing
a “screening” or “gate-keeping” role for the trial court, the
Court held that, “under the Rules the trial judge must ensure
that any and all scientic testimony or evidence admitted is
not only relevant, but reliable.” The trial court must therefore
make “a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.”
The considerations that bear on the trial court’s inquiry in
determining “whether a theory or technique is scientic knowl-
edge that will assist the trier of fact will be [1] whether it can
be (and has been) tested” (i.e., whether the methodology has
been tested or is testable); (2) “whether the theory or technique
[i.e., methodology] has been subjected to peer review and
publication;” (3) whether the methodology has a “known or
potential rate of error, *** and the existence and maintenance
of standards controlling the technique’s operation;” and (4)
whether the methodology has general acceptance within the
relevant scientic community (i.e., the Frye test). The Supreme
Court stressed that the inquiry is a exible one, and that the
focus “must be solely on principles and methodology, not on
the conclusions they generate.”
Note that Daubert does not exclude expert testimony that
may be deemed to be “incorrect” merely because it may not
be reconcilable with other testimony. This is illustrated by the
decision of the Seventh Circuit Court of Appeals in Stuhlmacher
v. Home Depot U.S.A., Inc., 774 F.3d 405 (7th Cir. 2014).
There, the magistrate judge struck the testimony of an accident
reconstruction expert about a defect in the ladder from which
the plaintiff fell, a defect that caused instability in the ladder.
The judge initially had found the expert’s testimony admissible,
but struck his testimony based on the conclusion that the
expert’s testimony could not be reconciled with the testimony
of the plaintiff, who had not testied about the instability of the
ladder. In sum, although the judge found the expert’s testimony
reliable, he struck it as irrelevant under Daubert because he
found the expert’s version and the plaintiff’s version to be irrec-
oncilable. Reasoning that the jury could have found that the
expert’s theory was credible and that the plaintiff’s testimony
merely reected his memory of the event as it was happening,
the Seventh Circuit reversed the judgment for the defendants
and remanded for further proceedings, holding:
“It is not the trial judge’s job to determine whether
the expert’s opinion is correct. Instead, under the
relevancy prong, the judge is limited to deter-
mining whether expert testimony is pertinent to
an issue in the case. Here, the judge improperly
expanded his role beyond gatekeeper to trier
of fact.” Stuhlmacher, 774 F.3d at 409 (internal
citations omitted).
In Burton v, E.I. Du Pont De Nomours, and Company, Inc.
994 F. 3d 791 (7th Cir. 2021), the Seventh Circuit explained the
role of the trial judge gatekeeper in this fashion:
“Although Rule 702 ‘places the judge in the role of
gatekeeper for expert testimony, the key to the gate
is not the ultimate correctness of the expert’s con-
clusions,’ but rather ‘the soundness and care with
which the expert arrived at her opinion’ Schultz [v.
Azko Nobel Paints, LLC,] 721 F. 3d [426 (7th Cir.
426 (2014)] at 431. ‘So long as the principles and
methodology reect reliable scientic practice,
‘“[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate
means of accepting shaky but admissible evi-
dence.’” Citing Daubert, 509 U.S. at 596. Burton,
994 F. 3d at 826.
In United States v. Tingle, 880 F.3d 350 (7th Cir. 2018),
the circuit court criticized the district court’s practice of not
identifying expert witnesses:
“The Federal Rules of Evidence and Supreme Court
precedent make clear that courts must examine
the qualications of expert witnesses and consider
COMMENTARY CONTINUED
187ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
whether the expert’s testimony will be helpful
to the jury. The district court cannot use such
procedures [the practice of not identifying expert
witnesses] to avoid its gatekeeper responsibility.”
Tingle, 880 F.3d at 854.
general eleCtriC Co. v. Joiner
In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the
Supreme Court held that abuse of discretion, which is the stan-
dard ordinarily used to review evidentiary rulings, also is the
proper standard for review of a trial court’s admission or exclu-
sion of expert scientic evidence. Applying standards provided
by Daubert, the Court approved the trial court’s exclusion of
the experts’ opinions in this case because studies cited by the
experts about experiments on infant mice were dissimilar to
what allegedly occurred to the adult human plaintiff, and the
epidemiological studies relied upon by the experts did not con-
stitute a sufcient basis for their conclusions. In rejecting the
argument that the trial court had erred by failing to adhere to
language in Daubert that the “focus, of course, must be solely
on principles and methodology, not on the conclusions that
they generate,” the Court stated:
“But conclusions and methodology are not
entirely distinct from one another. Trained experts
commonly extrapolate from existing data. But
nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion
evidence which is connected to existing data only
by the ipse dixit of the expert. A court may con-
clude that there is simply too great an analytical
gap between the data and the opinion proffered.”
General Electric Co. v. Joiner, 522 U.S. at 146.
In other words, while Daubert stressed the importance of
methodology, Joiner holds that the expert’s conclusion also
must correlate with supportive data. The expert’s mere state-
ments (his ipse dixit) alone are insufcient.
kUmho tire Co. v. CarmiChael
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the
Court held that, although Daubert referred only to scientic
testimony because that was the expertise at issue in that case,
the trial court’s gate-keeping responsibility regarding relevance
and reliability applies not only to “scientic” testimony but to
all expert testimony—that involving technical and other spe-
cialized knowledge as well. Pointing out Daubert’s description
of the Rule 702 inquiry as a “exible one” that allows consid-
eration of other specic factors as well as non-application of
some of those provided in Daubert, the Court stressed that the
factors mentioned in Daubert do not constitute a “denitive
checklist or test,” and that the gate-keeping inquiry must be tied
to the facts of a particular case.
Seventh circuit Summary of DaUbert principleS
In Krik v. Exxon Mobile Corp., 870 F.3d 669 (7th Cir. 2017),
a decision citing other circuit opinions and one that negated
causation theories that posit that any exposure to asbestos
bers whatsoever, regardless of the amount of bers or length
of exposure constitutes an underlying cause of injury to the
exposed individual, the Seventh Circuit provided the following
summarization of Daubert principles:
“The Supreme Court has interpreted Rule 702
with a exible standard that boils down to two
over-arching requirements for expert witness testi-
mony. The expert testimony must be ‘ground[ed] in
the methods and procedures of science’ and must
‘assist the trier of fact to understand or determine a
fact in issue.’ Daubert, 509 U.S. at 590–91. Daubert
requires the district court to act as an evidentiary
gatekeeper, ensuring that an expert’s testimony
rests on a reliable foundation and is relevant to the
task at hand. Id. at 589. To do this a trial judge must
make a preliminary assessment that the testimony’s
underlying reasoning or methodology is scienti-
cally valid and properly applied to the facts at
issue. Id. at 592–93. The district court holds broad
discretion in its gatekeeper function of determining
the relevance and reliability of the expert opinion
testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141 (1999). Our circuit has given courts the
following guidance to determine the reliability of a
qualied expert’s testimony under Daubert, stating
that they are to consider, among other things: “(1)
whether the proffered theory can be and has been
COMMENTARY CONTINUED
188RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
tested; (2) whether the theory has been subjected
to peer review; (3) whether the theory has been
evaluated in light of potential rates of error; and
(4) whether the theory has been accepted in the
relevant scientic community.” Baugh v. Cuprum
S.A. de C.V., 845 F.3d 838, 844 (7th Cir. 2017);
see also Smith v. Ford Motor Co., 215 F.3d 713,
719 (7th Cir. 2000). Despite the list, we have
repeatedly emphasized that “no single factor is
either required in the analysis or dispositive as
to its outcome.” Smith, 215 F.3d at 719; see also
Kumho Tire Co., 526 U.S. at 151–52. The district
court may apply these factors exibly as the case
requires. United States v. Brumley, 217 F.3d 905,
911 (2000). Indeed Daubert itself contemplated
a exible standard with broad discretion given to
district court judges. Daubert, 509 U.S. at 593.”
Krik v. Exxon Mobile Corp., 870 F.3d at 674.
The Krik court also provided the following guidance regard-
ing the standard of review:
“Whether the district court applied the Daubert
framework properly is a question we review de
novo but we review the decision to exclude or
admit the expert witness testimony for an abuse
of discretion only. C.W. ex rel. Wood v. Textron,
Inc., 807 F.3d 827, 835 (7th Cir. 2015). The party
seeking to introduce the expert witness testimony
bears the burden of demonstrating that the expert
witness testimony satises the standard by a
preponderance of the evidence. Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009).” Krik v. Exxon Mobile Corp., 870 F.3d at
673. Note, however, that where the district court
fails to perform a Daubert analysis, the admissi-
bility of the expert testimony must be reviewed
de novo. Kirk v. Clark Equip. Co.. 991 F.3d 865,
872-73 (7th Cir. 2021) (collecting cases).
exampleS of 7th circuit’S application of DaUbert
For a decision that provides helpful guidance in applying
FRE 702 and Daubert standards, see Gopalratnam v. Hewlett-
Packard Company, 877 F.3d 771 (7th Cir. 2017), an appeal
from a products liability suit involving a death caused by re,
which allegedly was caused by a defective lithium battery
cell in a laptop computer, where the Seventh Circuit afrmed
the district court’s grant of summary judgment in favor of the
defendants based on the unreliability of the opinions of two
plaintiff experts.
Another application of Daubert is found in Varlen
Corporation v. Liberty Mutual Ins. Co., 924 F.3d 456 (7th Cir.
2019). In that case, to be indemnied by its insurer for ground-
water contamination, plaintiff needed to prove that chemical
leaks or discharges that caused the contamination on two of its
sites were “sudden and accidental.” Determining that plaintiff’s
expert testimony was not based on reliable methods or princi-
ples, the district court held that plaintiff did not meet Daubert
requirements in establishing sudden and accidental discharges
and struck his testimony, granting summary judgment to the
insurer, which the Seventh Circuit afrmed.
Smith v. Illinois Department of Transportation, 936 F.3d 554
(7th Cir. 2019), was a Title VII action based on allegations of a
hostile work environment and a wrongful ring in retaliation
for plaintiff’s complaints about racial discrimination. In grant-
ing summary judgment for the defendant, the district court
declined to consider the deposition testimony of plaintiff’s
expert witness, an expert in industrial relations, based on the
fact that her opinions were not based on “sufcient facts or
data.” Afrming the district court’s rejection of the expert’s
testimony, the Seventh Circuit noted that the expert did not
interview plaintiff or his supervisors and she did not review
any sworn deposition testimony. She appeared to rely only
on what appeared to be “plaintiff-curated records.” As for the
retaliation claim, the court noted that the expert asserted that
plaintiff’s evaluations became more negative after he led his
complaints, but “she admitted that she had no information
about whether any of these supervisors even knew about
[plaintiff’s] complaints at the time that they submitted negative
evaluations.” Smith, at 559 (emphasis by the court). Quoting
United States v. Mamah, 332 F.3d 475, 475 (7th Cir. 2003), the
court stated “[i]t is critical under Rule 702 that there be a link
189ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
COMMENTARY CONTINUED
between the facts or data the expert has worked with and the
conclusion the expert’s testimony is intended to support.” Id.
In United States v. Truitt, 938 F.3d 885 (7th Cir. 2019), a jury
convicted the defendant of false claims against the U.S. and
theft of government of funds, by falsely claiming entitlement to
and receiving a refund of $300,000 from the IRS. Her defense
was based on her claim that she lacked the requisite mens rea
for the crimes because she was a member of a “charismatic
group,” which had a strong inuence on her “to comply with
the group’s behavioral norms, and assigning charismatic and
sometimes divine powers to the group and its leadership.”
Truitt, at 888. To support her defense, she intended to offer
the testimony of a forensic psychologist, but the district court
granted the government’s motion in limine based on Daubert
requirements. The sole argument on appeal was the challenge
to the exclusion of the psychologist’s testimony. The Seventh
Circuit afrmed. It rst held that the district court correctly ruled
that the psychologist, who was qualied in other areas, was not
qualied to answer the specic questions presented because he
lacked experience with charismatic groups and was not qual-
ied to answer specic questions about the religious themes
in play in the case. The court also held that the psychologist’s
methodology was inadequate and thus not scientically reli-
able. It pointed out that, though he interviewed the defendant,
he did not interview other members of the group to evaluate
whether there was a “shared belief system,” a “high level of
social cohesiveness,” and a “strong inuence to comply with
the group’s behavioral norms.” Id. at 890.
In Owens v. Auxilium Pharmaceuticals, Inc. 895 F.3d 971
(7th Cir. 2018), the Seventh Circuit afrmed the district court’s
exclusion of a doctor’s expert testimony because the testimony
did not t the facts of the case, and thus was not likely to “assist
the trier of fact to understand the evidence or to determine a
fact in issue.” Id. at 973. In this case, the expert opinion did not
note that plaintiff improperly used his prescribed medication,
which he alleged caused his deep vein thrombosis, so the
witness’s opinion was irrelevant, resulting in the district court
properly exercising its gatekeeping responsibility in excluding
the evidence.
need for expert opinion to help the trier of fact
United States v. Dewitt, 943 F.3d 1092 (7th Cir. 2019), a
prosecution relating to the production, distribution, and pos-
session of child pornography, illustrates Rule 702’s requirement
that the expert opinion “help the trier of fact to understand
the evidence or to determine a fact in issue.” In that case the
defendant contended that the law required the government to
present expert testimony about the subjects’ ages before images
could be received into evidence. Conceding that in some dif-
cult cases expert testimony may be necessary and that the issue
should be determined on a case by case basis, the Seventh
Circuit held that there is no requirement for expert testimony
and “[j]urors are capable of drawing on their own perceptions
to determine a subject’s age because these types of assessments
are ‘regularly made in everyday life.’” Id. at 1096.
United States v. Wehrle, 985 F.3d 549 (7th Cir. 2021), cited
Dewitt in holding that a police ofcer’s testimony that seized
devices contained child pornography “was properly admitted
as fact testimony because it was an ordinary and accepted way
to describe what she had observed.” Wehrle, at 555. But the
case is noteworthy for a different issue due to the contrasting
views of the majority and the concurring judge. The majority
held that the trial judge erred in failing to qualify the police
ofcer as an expert witness when she provided testimony in
describing the methods she used in extracting data about child
pornography from the defendant’s digital devices. The majority
reasoned that the ofcer testied to technical concepts beyond
ordinary knowledge, but it held that the admission of the evi-
dence constituted harmless error because of the overwhelming
evidence of the defendant’s guilt. Citing decisions from other
circuits that concluded “that testimony regarding the mere
extraction of data from a cell phone does not require expert
certication under Rule 702” (Wehrle, at 558), the concurring
judge reasoned that, “[a]lthough members of the general public
may not be familiar with the particular programs she used to
do so, the average person would be familiar with the concepts
of extracting data from a device and preserving the data on the
origin device.” Id.
190RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
Author’s Commentary on Ill. R. Evid. 702
acceptance of frye and rejection of DaUbert
Before the U.S. Supreme Court’s decision in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), FRE
702 consisted of a single sentence that was identical to the
rst sentence in what is now IRE 702. In 2000, after the 1993
Daubert decision, FRE 702 was amended—in afrmation of
Daubert—adding three numbered phrases that were substan-
tially identical to the three subdivisions that now bear the
letters (b), (c), and (d). Those subdivisions received alphabetical
designations as a result of the amendments to the federal rules
solely for stylistic purposes effective December 1, 2011. So,
the rst sentence of IRE 702 is substantially identical to the rst
portion of FRE 702 before the latter’s 2000 amendment that
added numbered subdivisions and the 2011 amendments that
provided alphabetical designations for the subdivisions.
Illinois applies the Frye test (Frye v. U.S., 293 F. 1013 (D.C.
Cir. 1923)) to expert witness testimony based on new or novel
scientic methodology or principle (see, e.g., Donaldson v.
Cent. Ill. Pub. Serv. Co., 199 Ill. 2d 63 (2002) (reiterating the
Frye standard and rejecting the “Frye-plus-reliability” test, by
reasoning that reliability is naturally subsumed by the inquiry
into whether the methodology is generally accepted in the
relevant scientic eld)). Because Illinois rejects the Daubert
standard, which is codied in what is now subdivisions (b),
(c), and (d) of the federal rule, those subdivisions have not
been adopted. Instead, the second sentence of the Illinois rule,
expressing the Frye standard, has been added to emphasize
that Illinois remains a Frye state.
But note that the Frye test applies only where new or novel
scientic methodologies or principles are involved. Thus, except
for relevancy and the standards contained in the rst sentence
of the rule (i.e., (1) specialized knowledge or skill possessed by
a witness qualied as an expert (2) that will assist the trier of
fact to understand the evidence or to determine a fact in issue),
IRE 702 offers no guidance as to the standards necessary for
the admission of expert opinion evidence where new or novel
scientic methodologies or principles are not involved. That is
so because Illinois has not adopted the requirements provided
by FRE 702(b), (c), or (d), nor has it provided other codied
standards for the threshold determination of the admissibility of
expert opinion evidence.
Nevertheless, the standards provided by FRE 702(b), (c), and
(d) do apply in Illinois, but only insofar as they are relevant
to the trier of fact’s determinations regarding relevance and
reliability. In other words, despite the absence of the guidance
of a codied rule or of an Illinois Pattern Jury Instruction on the
subject, the standards provided by the federal rule are relevant
for the determinations by the trier of fact concerning the weight
to be given to the evidence. Though Illinois courts are required
to deny admissibility of expert testimony where the witness
lacks expert qualications (as required also under IRE 104(a)) or
where the testimony will not assist the trier of fact to understand
the evidence or a fact in issue, the other federal standards are
not used by an Illinois trial court for the gate-keeping function
to determine admissibility of expert testimony.
applying frye
There are two requirements for the application of the Frye
standard: (1) the requirement that a “new or novel” scientic
methodology or principle is involved, which is a prerequisite
that leads to (2) the requirement that the methodology or
principle must have “gained general acceptance.” See People
v. McKown, 236 Ill. 2d 278, 282-83 (2010) (“the Frye test is
necessary only if the scientic principle, technique or test
offered by the expert to support his or her conclusion is ‘new’
or ‘novel’”). “General acceptance” of a methodology does not
mean “universal acceptance,” and “it does not require that
the methodology *** be accepted by unanimity, consensus,
or even a majority of experts.” In re Commitment of Simons,
213 Ill. 2d 523, 530; Donaldson, 199 Ill. 2d at 76-77. As IRE
702 itself makes clear, the proponent of the evidence bears the
burden of showing general acceptance. See also McKown, 236
Ill. 2d at 294.
As shown from the above quote from McKown, and as further
shown in the earlier McKown decision in People v. McKown,
226 Ill. 2d 245, 254 (2007), and In re Commitment of Simons,
213 Ill. 2d 523, 529-30 (2004), the Illinois Supreme Court
has made it clear that Frye applies only where a new or novel
scientic methodology or principle is involved. For an example
COMMENTARY CONTINUED
191ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
of the application of that principle, see People v. Wilson, 2017
IL App (1st)143183, ¶¶ 45-47, where the appellate court held
that, because historical cell site analysis (HCSA—reading coor-
dinates of cell sites from phone records and plotting them on
a map) does not qualify as scientic evidence, the defendant’s
contention that his attorney provided ineffective assistance in
failing to request a Frye hearing lacked validity. For another
example, see People v. Coleman, 2014 IL App (5th) 110274,
where the defendant challenged the trial court’s ruling allowing
an expert linguist to testify on the issue of authorship attribution
(comparison of handwriting), contending that the trial court
erred in admitting the evidence after a Frye hearing, held “in
the interest of safety.” The appellate court rejected the defen-
dant’s argument based on its nding that the subject matter of
the expert’s testimony did not involve scientic methodology
or principle, but was based on the expert’s observation and
experience, and thus was not subject to Frye; and that, in any
event, the expert’s testimony presented nothing new or novel.
Coleman, at ¶¶ 111-120.
meaning of “or otherwiSe” in the phraSe “in the form of an
opinion or otherwiSe”
Most expert testimony is provided by opinion. But what is
intended by “or otherwise” in the phrase “in the form of an
opinion or otherwise” is not readily ascertainable. The 1972
note of the Federal Advisory Committee on Rule 702, equally
applicable to the Illinois codication, supplies the explanation:
“Most of the literature assumes that experts testify
only in the form of opinions. The assumption
is logically unfounded. The rule accordingly
recognizes that an expert on the stand may give
a dissertation or exposition of scientic or other
principles relevant to the case, leaving the trier of
fact to apply them to the facts.***[I]t seems wise
to recognize that opinions are not indispensable
and to recognize the use of expert testimony in
non-opinion form when counsel believes the trier
can itself draw the requisite inference.”
The note goes on to explain that, in addition to allowing the
trier of fact to draw its own inference from evidence provided
by an expert witness, the use of expert opinions may still be
used “to take the further step of suggesting the inference which
should be drawn from applying the specialized knowledge to
the facts.” And, although the trier of fact may draw inferences
on its own from the evidence provided by an expert witness,
during closing arguments counsel is allowed to draw inferences
from the evidence to assist the trier in drawing an appropriate
inference.
general principleS for expert teStimony
General principles that apply to testimony of experts in
Illinois are provided succinctly by Thompson v. Gordon, 221
Ill. 2d 414 (2006), which predates the codication of Illinois
evidence rules:
“With regard to expert testimony, it is well settled
that the decision whether to admit expert testi-
mony is within the sound discretion of the trial
court. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).
A person will be allowed to testify as an expert
if his experience and qualications afford him
knowledge that is not common to laypersons,
and where his testimony will aid the trier of fact
in reaching its conclusions.’ People v. Miller, 173
Ill. 2d 167,186 (1996). ‘There is no predetermined
formula for how an expert acquires specialized
knowledge or experience and the expert can gain
such through practical experience, scientic study,
education, training or research.’ Miller, 173 Ill. 2d
at 186. Thus, ‘[f]ormal academic training or spe-
cic degrees are not required to qualify a person
as an expert; practical experience in a eld may
serve just as well to qualify him.’ Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 459 (1992). An
expert need only have knowledge and experience
beyond that of an average citizen. Miller, 173 Ill.
2d at 186. Expert testimony, then, is admissible
‘if the proffered expert is qualied by knowledge,
skill, experience, training, or education, and the
testimony will assist the trier of fact in under-
standing the evidence.’ Snelson, 204 Ill. 2d at 24.”
Thompson v. Gordon, 221 Ill. 2d at 428.
COMMENTARY CONTINUED
192RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
The supreme court’s recent decision in People v. King, 2020
IL 123926, provides similar as well as additional general prin-
ciples applicable to expert testimony:
“‘In Illinois, generally, an individual will be per-
mitted to testify as an expert if his experience and
qualications afford him knowledge which is not
common to lay persons and where such testimony
will aid the trier of fact in reaching its conclusion.’
People v. Enis, 139 Ill. 2d 264, 288 (1990). In
addressing the admission of expert testimony, the
trial court should balance the probative value of
the evidence against its prejudicial effect to deter-
mine the reliability of the testimony. Id. at 290. In
addition, in the exercise of its discretion, the trial
court should carefully consider the necessity and
relevance of the expert testimony in light of the
particular facts of the case before admitting that
testimony for the jury’s consideration. Id. This court
has held that expert testimony is necessary only
when ‘the subject is both particularly within the
witness’ experience and qualications and beyond
that of the average juror’s, and when it will aid the
jury in reaching its conclusion.’ People v. Cloutier,
156 Ill. 2d 483, 501 (1993). Expert testimony
addressing matters of common knowledge is not
admissible ‘unless the subject is difcult to under-
stand and explain.’ People v. Becker, 239 Ill. 2d
215, 235 (2010). When determining the reliability
of an expert witness, a trial court is given broad
discretion. Enis, 139 Ill. 2d at 290. Therefore, we
review the trial court’s decision to admit evidence,
including expert witness testimony, for an abuse of
that discretion. Becker, 230 Ill. 2d at 234. An abuse
of discretion occurs only where the trial court’s
decision is ‘arbitrary, fanciful, or unreasonable to
the degree that no reasonable person would agree
with it.’ People v. Rivera, 2013 IL 112467, ¶ 37.”
King, at ¶ 35.
dual Standard of review
In In re Commitment of Simons, 213 Ill. 2d 523 (2004), the
supreme court altered its standard of review concerning expert
scientic testimony by adopting a dual standard. It did so in
order to allow a broader review of the validity of a trial court’s
Frye analysis:
“Accordingly, we hereby adopt a dual standard of
review with respect to the trial court’s admission
of expert scientic testimony. The decision as to
whether an expert scientic witness is qualied to
testify in a subject area, and whether the proffered
testimony is relevant in a particular case, remains
in the sound discretion of the trial court. The trial
court’s Frye analysis, however, is now subject to de
novo review. In conducting such de novo review,
the reviewing court may consider not only the trial
court record but also, where appropriate, sources
outside the record, including legal and scientic
articles, as well as court opinions from other
jurisdictions.”
Thus, under Simons, abuse of discretion remains the
standard of review regarding the qualications of the expert
witness and the relevance of the expert’s testimony, but the
standard of review for expert scientic testimony concerning
whether a novel methodology has gained general acceptance
under the Frye analysis is now de novo which, as the above
quote indicates, includes considering relevant sources outside
the record. This holding reversed the portion of Donaldson
and People v. Miller, 173 Ill. 2d 167, which (consistent with
the general standard for review of rulings on the admissibility
of evidence), had held that the Frye determination by the trial
court was subject to the abuse of discretion standard. Simons’
adoption of the de novo standard of review was consistent with
views expressed by Justice McMorrow in special concurrence
in both Miller and Donaldson.
diagnoSiS iS Subject to frye hearing
In a supreme court case relevant to the Frye test, In re the
Detention of New, 2014 IL 116306, a jury found that the
respondent New was a sexually violent person under the
Sexually Violent Persons Commitment Act. During the trial,
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193ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
COMMENTARY CONTINUED
the State and New disputed the validity of a diagnosed mental
disorder. The State’s two experts testied that New’s diagnosed
mental disorder was proper (one diagnosed paraphilia not
otherwise specied, sexually attracted to adolescent males or
alternatively sexually attracted to early pubescent males, rang-
ing from age 11 to 14 years old; the other diagnosed paraphilia
not otherwise specied, sexually attracted to adolescent males,
non-exclusive type; both referred to as “hebephilia”); while
New’s expert contended that paraphilia not otherwise speci-
ed, sexually attracted to adolescent males is not a generally
accepted diagnosis. The issue before the supreme court was
whether a Frye hearing was required to determine the admissi-
bility of the diagnosis of the State’s expert witnesses. In response
to the State’s contention that Frye does not apply to a diagnosis
because a diagnosis does not constitute a scientic principle
or methodology, the supreme court reasoned that the issue
before it was whether the diagnosis of the State’s witnesses “is a
diagnosable mental condition based upon legitimate scientic
principles and methods.” It concluded that “[t]his is the type of
scientic evidence that the analytic framework established by
Frye was designed to address.” New, at ¶ 33. In determining
whether the State’s witnesses’ diagnosis was predicated on
new or novel science, the court considered various authorities,
noted that the diagnosis had recently been rejected for inclu-
sion in DSM-5, and also noted that the State recognized the
recent debate over whether hebephilia is a diagnosable mental
condition. Based on those considerations, the supreme court
concluded that the diagnosis is sufciently novel for purposes
of Frye. Finally, as to the issue of general acceptance, the court
concluded that this determination could not be made on the
basis of judicial notice alone and that it had an inadequate
basis to determine whether the diagnosis had gained general
acceptance in the psychological and psychiatric communities.
New, at ¶ 53. The court therefore remanded the case to the
circuit court for a Frye hearing to determine if hebephilia is a
generally accepted diagnosis in the relevant communities, and,
if necessary, for a new trial.
Before the supreme court’s decision in In re the Detention
of New, but after the appellate court’s decision in that case,
in In re the Detention of Melcher, 2013 IL App (1st) 123085,
and in In re the Detention of Hayes, 2014 IL App (1st) 120364,
the appellate court also had addressed whether the diagnosis
of paraphilia, not otherwise specied, nonconsent (PNOS
nonconsent) was subject to the Frye test. As in New, in both
of those cases and consistent with the supreme court’s later
decision in New, the appellate court held that the Frye test
applied even to a diagnosis. In both cases, however, the court
held that a Frye hearing was unnecessary because the diagnosis
in question had already been well established.
“Shaken baby Syndrome” iS not a methodology
In People v. Cook, 2014 IL App (1st) 113079, the defendant
contended that the trial court had committed reversible error in
failing to hold a Frye hearing on the admissibility of evidence
of Shaken Baby Syndrome. The appellate court noted that the
expert opinion in the case at bar was not based on a theory of
“Shaken Baby Syndrome,” but rather was based on medical
knowledge and opinion. It further reasoned that, even if Shaken
Baby Syndrome had been diagnosed, it is not a “methodology,”
but “is a conclusion that may be reached based on observations
and medical training which is not new or novel.” Cook, at ¶ 52.
As such, no Frye hearing was necessary. In the later case of
People v. Schuit, 2016 IL App (1st) 150312, the appellate court
reached the same conclusions.
no general acceptance of gSS
In another Frye-related case, People v. Shanklin, 2014 IL
App (1st) 120084, the defendant led a motion to suppress his
statements to police and an assistant state’s attorney concern-
ing rst-degree murder, aggravated criminal sexual assault, and
other offenses. In support of his motion, the defendant sought
to admit testimony from experts to testify about the results of
the Gudjonsson Suggestibility Scale (GSS), a test administered
to determine his alleged susceptibility to interrogation tech-
niques. Over the defendant’s objections, the trial court granted
the State’s motion for a Frye hearing and, after hearing testi-
mony from experts on both sides, barred the testimony of the
defendant’s experts, ruling that GSS’s acceptance in the eld of
forensic psychology was unsettled, and it thus remained a novel
scientic methodology that had not gained general acceptance.
The appellate court afrmed the trial court’s holding. In doing
so, the court distinguished People v. Nelson, 235 Ill. 2d 386
194RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
(2009), on the basis that, in that case, the supreme court was
not called upon to determine whether GSS had gained general
acceptance in the scientic community. The Nelson decision
turned on the lack of relevance of GSS evidence, given that the
defendant in that case had not presented evidence that he was
induced to make statements and that the statements he made
were consistent with the facts involved in the charged offenses.
general acceptance of y-Str teStimony
In People v. Zapata, 2014 IL App (2d) 120825, the appel-
late court approved of the admissibility of the Y-STR analysis
of a specimen of DNA found on the victim’s underwear in a
criminal sexual assault case. The court’s approval was based on
compliance with the two tests provided by the supreme court
in People v. McKown, 226 Ill. 2d 245, 254 (2007): “[a] court
may determine the general acceptance of a scientic principle
or methodology in either of two ways: (1) based on the results
of a Frye hearing; or (2) by taking judicial notice of unequivocal
and undisputed prior judicial decisions or technical writings on
the subject.” (Emphasis on the word “or” added by the court).
The court noted that a Frye hearing about Y-STR testing had
occurred, albeit in another court out-of-state, and that there
was sufcient general acceptance of that testing in the relevant
scientic community.
inadmiSSibility of expert opinion teStimony on witneSS’S
credibility
In People v. Becker, 239 Ill. 2d 215 (2010), the supreme
court held that the trial court had properly excluded expert
opinion testimony by an expert witness concerning the cred-
ibility of a child witness because of the impropriety of asking
one witness to comment directly on the credibility of another
(see People v. Kokoraleis, 132 Ill. 2d 235 (1989)), and because
“the observation that this young child, like any young child,
might be inuenced by suggestive questioning and improper
investigative techniques, is not a matter beyond the ken of the
average juror.” The court went on to express its belief that “it
is a matter of common understanding that children are subject
to suggestion, that they often answer in a way that they believe
will please adults, and that they are inclined to integrate c-
tional notions with reality as we know it.”
inadmiSSibility of expert opinion teStimony on whether defendant
had relevant Specific intent
In People v. Nepras, 2020 IL App (2d) 180081, where, in
the early morning hours, police found defendant inside a laun-
dromat’s ofce where the door had been busted open, the trial
court prohibited defendant from introducing expert testimony
that he was incapable of forming the specic intent to commit
theft as an element for the offense of burglary. Holding that the
trial court had properly denied expert opinion on defendant’s
state of mind, the appellate court reasoned as follows:
“Because a defendant’s state of mind at the time
of the crime is a question for the trier of fact, an
expert witness who was not present when the
defendant entered the premises cannot opine
whether the defendant acted with a specic
mental state. People v. Frazier, 2019 IL App (1st)
172250, ¶ 33 (citing People v. Hulitt, 361 Ill.
App. 3d 634, 639 (2005)). Thus, allowing expert
testimony regarding a defendant’s mental state at
the time of the offense would usurp the province of
the trier of fact. Frazier, 2019 IL App (1st) 172250,
¶ 33.” Nepras, at ¶23.
Because Illinois does not recognize diminished capacity
as a defense, the appellate court also rejected that basis for
the admission of the expert’s testimony. Finally, the court also
rejected defendant’s contention that the expert testimony
should have been allowed because there was no direct evi-
dence of his intent to commit a theft, reasoning that it was up
to the jury to determine, based on the circumstantial evidence
in the case, whether defendant entered the laundromat with the
intent to commit a theft.
lerma: expert opinion teStimony on eyewitneSS teStimony
In People v. Lerma, 2016 IL 118496, before he died, the victim
of a murder offense identied the defendant as the person who
shot him, and his statement about who shot him was admitted
at trial as an excited utterance. A witness, who had heard the
victim identify the defendant as the shooter and who claimed
to have known the defendant but whose familiarity with the
defendant was contradicted by her grand jury testimony, was
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195ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
COMMENTARY CONTINUED
the only witness to provide identication testimony at the trial,
in which no other incriminating evidence was provided. Before
trial, the trial court had refused to admit the testimony of an
expert witness on eyewitness testimony based on the expert’s
report that his opinion did not apply where the eyewitness
knew the offender. After that expert died, the defendant sought
to have the opinion of another expert admitted. That expert’s
report stated that a witness’s prior acquaintance with a defen-
dant did not necessarily ensure accuracy of identication. The
trial court refused admission of that expert’s testimony based
upon the same grounds used to exclude the testimony of the
original expert. On appeal, the appellate court reversed the
murder conviction, holding that “the trial court’s failure here to
carefully scrutinize [the second expert’s] anticipated testimony,
as stated in his report, constituted an abuse of discretion.” See
People v. Lerma, 2014 IL App (1st) 121880, ¶ 37.
On further review, the supreme court agreed. The court
noted that “this is the type of case for which expert eyewit-
ness testimony is both relevant and appropriate.” People v.
Lerma, 2016 IL 118496, ¶ 26. This was so, the court reasoned,
because “the State’s case against defendant hangs 100% on the
reliability of its eyewitness identications,” and because the
second expert’s proposed testimony was especially relevant to
the issue of the reliability of eyewitness identication. Id. The
court noted that it had been more than 25 years since its last
decision on eyewitness expert testimony in People v. Enis, 139
Ill. 2d 264 (1990), that “eyewitness misidentication is now the
single greatest source of wrongful convictions in the United
States, and responsible for more wrongful convictions than all
other causes combined,” and that the research on eyewitness
identications “is well settled, well supported, and in appro-
priate cases a perfectly proper subject for expert testimony.”
People v. Lerma, 2016 IL 118496, ¶ 24.
non-application of lerma on collateral review
People v. Brown, 2020 IL App (1st) 190828, ¶¶ 45-53,
denied the invocation of Lerma on due process grounds in col-
lateral review in postconviction proceedings. Brown was tried
before Lerma was issued. In that case, the trial court denied the
defendant’s motion to admit eyewitness expert testimony, and
the appellate court afrmed that ruling on direct appeal. Based
on res judicata grounds, Brown held that the defendant could
not invoke Lerma on collateral review. In response to the defen-
dant’s contention that res judicata should not apply because
Lerma changed the relevant law, the appellate court noted that
“it was well established prior to Lerma that the trial court, in
the exercise of its broad discretion, must ‘carefully scrutinize’
the relevance and probative value of the defense’s proffered
eyewitness identication expert testimony,” and Lerma did
not change that standard. Brown, at ¶ 52. The appellate court
further noted that Lerma did not overcome res judicata, for its
application would be barred by Teague v. Lane, 489 U.S. 288,
301 (1989), because it is not a substantive rule and the defen-
dant did not argue that it is a “watershed” procedural rule. Id.
at ¶ 53.
expert opinion on falSe confeSSion baSed on perSonality Subject
to manipulation
People v. Burgund, 2016 IL App (5th) 130119, offers a
decision about expert opinion evidence that may be limited
in application due to the unique facts presented. In that case,
the defendant was convicted by a jury of ve counts of pred-
atory criminal sexual assault on his two daughters, who were
between the ages of 1 and 3½ and 1 and 2 at the time of the
alleged conduct. The younger daughter did not testify at trial;
the older daughter, then 5 years-old, did testify, but did not
provide persuasive evidence. The primary evidence against the
defendant included the testimony of his wife and his mother-
in-law, the hearsay statements of the older daughter allegedly
made to the defendant’s wife and her mother and made admis-
sible through testimony by them by virtue of section 115-10 of
the Code of Criminal Procedure of 1963, and the defendant’s
videotaped confession to police.
At trial, the defendant testied that he had not abused his
daughters. He admitted confessing to police, but testied he
had done so because of the manipulations of his wife and
mother-in-law, manipulations that involved religious beliefs,
coercive conduct including physical assaults, and his belief that
his wife had “spiritual discernment” that led to her numerous
accusations concerning her knowledge of his alleged sexual
lust and that ultimately resulted in his coming to believe that he
196RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
had abused his daughters. He later realized he had no memory
of any such conduct.
The defendant unsuccessfully sought to provide the
expert testimony of a clinical psychologist, making an offer
of proof when the trial court sustained the State’s objections.
The psychologist would have provided expert testimony in
support of the defendant’s claim that he had given a false
confession because of psychological pressure, manipulation,
and suggestions by his wife and mother-in-law. Specically, he
would have testied that the defendant’s personality was such
that he was subject to manipulation. He would have provided
testimony not that the defendant was manipulated, but that his
personality prole showed that he was a person who could
be manipulated. He would have “opined that the defendant’s
‘psychological difculties would make him highly suggestible
and easily led, especially in matters that would have religious
or sexual overtones.’” Burgund. at ¶ 156.
After a thorough review of the evidence presented and some
erroneously not allowed by the trial court, which established
corroboration of many facts testied to by the defendant, the
appellate court held that the trial court had erred in not per-
mitting the testimony of the psychologist. The court relied in
part on the Seventh Circuit’s decision in United States v. Hall,
93 F.3d 1337 (7th Cit. 1996) (holding that expert evidence,
not on whether a confession was voluntary, but on whether,
because of the defendant’s personality disorder that made
him susceptible to suggestion and pathologically eager to
please, he confessed to a crime that he had not committed in
order to gain approval from the law enforcement ofcers who
interrogated him). Also, the appellate court distinguished the
holding in People v. Wood, 341 Ill. App. 3d 599 (2003), where
the defendant alleged that his confession had been coerced
and unsuccessfully sought to present expert testimony on the
defendant’s susceptibility to police suggestion and coercion,
something not beyond the ken of jurors and matters about
which the defendant could testify. The appellate court reversed
the defendant’s conviction and remanded the case to the circuit
court for a new trial.
general acceptance of hgn teSting
In the earlier case of People v. McKown I, 226 Ill. 2d 245
(2007), the supreme court held that horizontal gaze nystafmus
(HGN) testing had not been generally accepted as a reliable
indicator of alcohol impairment; that in the case of HGN
testing, general acceptance could not be determined by taking
judicial notice; and that a Frye hearing therefore had to be
held to determine general acceptance. On further review after
a trial on remand, in People v. McKown II, 236 Ill. 2d 278
(2010), though it reversed the defendant’s conviction for DUI,
the supreme court afrmed the nding of the trial court that
the State had satised its burden of establishing that horizontal
gaze nystafmus (HGN) testing “is generally accepted in the
relevant scientic elds and that evidence of HGN test results
is admissible for the purpose of proving that a defendant may
have consumed alcohol and may, as a result, be impaired.”
The court held that the “admissibility of HGN evidence in an
individual case will depend on the State’s ability to lay a proper
foundation and to demonstrate the qualications of its witness,
subject to the balancing of probative value with the risk of
unfair prejudice.”
general acceptance of retrograde extrapolation
In People v. Beck, 2017 IL App (4th) 160654, the appel-
late court held that, despite the absence of a Frye hearing in
the case at bar or in any other previous Illinois case, many
former Illinois decisions had generally accepted evidence of
retrograde extrapolation (dened as a method of estimating a
person’s blood alcohol concentration at an earlier point of time
by applying information on the rates at which the human body
absorbs and excretes alcohol, when the blood alcohol concen-
tration is known at a later time). The appellate court thus held
that the trial court had not erred in denying the defendant’s
motion to bar the retrograde extrapolation evidence.
general acceptance of fingerprint teSting
In People v. Luna, 2013 IL App (1st) 072253 (the “Brown’s
Chicken murder case”), the appellate court engaged in a thor-
ough analysis regarding whether a Frye hearing was required
concerning nger and palm print identication. In Luna, a palm
print had been found on a napkin in a garbage bag at the scene
of the murders, and there was expert testimony at trial that
COMMENTARY CONTINUED
197ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
the print was the defendant’s. The appellate court rejected the
defendant’s arguments that, because of recent criticisms and
controversy concerning ngerprint identication and because
print comparison has never been the subject of a Frye hearing
in Illinois, a Frye hearing was required to determine general
acceptance of the methodology used for comparison of latent
and known prints. The appellate court held that the trial court
had properly taken judicial notice of the general acceptance of
the ACE-V methodology (for analysis, comparison, evaluation,
and verication) for prints within the relevant scientic com-
munity. (See also People v. Morris, 2013 IL App (1st) 111251,
¶ 119 (holding that “there is no authority in Illinois, or in any
other state, to support the claim that it is error for a circuit
court to not hold a Frye hearing concerning the admissibility
of latent ngerprint analysis,” citing People v. Mitchell, 2011 IL
App (1st) 083143, ¶ 31.) (For a similar discussion of ngerprint
comparison, in a federal case and in the context of an alleged
violation of Daubert principles rather than Frye, see United
States v. Herrera, 704 F.3d 480 (7th Cir. 2013)).
Also in Luna, in the same garbage bag containing the napkin,
a chicken bone containing a small amount of DNA had been
found; there was expert testimony at trial that the DNA prole
on the bone was identical to the defendant’s DNA prole. In
rejecting the defendant’s contention of ineffective assistance of
counsel for counsel’s not requesting a Frye hearing because of
an alleged inadequate amount of DNA on the bone, the court
thoroughly discussed the DNA analysis, but ultimately did
not address whether a Frye hearing was required because it
concluded that the defendant could not satisfy the rst prong
of Strickland’s ineffective-assistance-of-counsel standard (that
counsel’s performance fell below professional standards).
For a discussion concerning a split in the appellate court
concerning the foundational requirements for admission of
expert opinion on ngerprint testing, see the heading “Split
Decisions Regarding Foundational Requirements for Fingerprint
Evidence, and Decisions Applying Rule 705 for Ballistics, DNA,
and Shoeprint Evidence” under the Author’s Commentary on
Ill. R. Evid. 705.
general acceptance of balliSticS and toolmark evidence
For a discussion of the general acceptance of ballistics and
toolmark evidence and the absence of need for a Frye hearing,
see People v. Rodriguez, 2017 IL App (1st) 141379, ¶¶ 49-57
(holding that the circuit court properly denied the defendant’s
motion for a Frye hearing, despite there being no record of
such a hearing, because “[t]oolmark and rearm identication
evidence is not new or novel, either pursuant to the plain
meaning of those words or in accordance with the analysis
employed by our supreme court in [People v.] McKown[, 226
Ill. 2d 245 (2007)]. Far from being unsettled, the law in Illinois
is consistent in its admission of such evidence.” Rodriguez,
at ¶ 56, citing People v. Robinson, 2013 IL App (1st) 102476,
¶ 80). Note that Rodriguez was vacated by the supreme court’s
supervisory order issued on January 18, 2018.
expert teStimony needed to Show cauSal connection between
injury at iSSue and preexiSting injury or condition
In Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), the
defendant estate’s decedent (whose death was unrelated to the
collision) rear-ended plaintiff’s car. Plaintiff sued for damages
for neck and back injuries. Over plaintiff’s objections, defen-
dant was allowed to cross-examine plaintiff and his physician
about an injury to plaintiff’s lower back ve years before the
accident, and also about plaintiff’s earlier treatment for “neck
problems” and carpal tunnel syndrome. The trial court granted
plaintiff a directed verdict on the negligence issue but left the
determination of causation and damages to the jury, which
returned a verdict for defendant. In its review of the appellate
court’s reversal in Voykin, the supreme court noted that the
appellate court had earlier developed a doctrine called the
“same part of the body rule,” which permitted the admission of
evidence of a prior injury without any showing that it was caus-
ally related to the present injury as long as both the past and
present injuries affected the same part of the body; but where
an injury was not to the same part of the body, a defendant
needed to demonstrate a causal connection between the cur-
rent and the prior injury. Noting that a conict had occurred in
appellate court decisions concerning the doctrine, the supreme
court pointed out that it had already rejected the doctrine in
its earlier 1962 decision in Caley v. Manicke, 24 Ill. 2d 390
COMMENTARY CONTINUED
198RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
(1962), where it had rejected the argument of the defendant in
that case by holding that requiring a defendant to demonstrate
a causal relationship between a prior and present injury in no
way shifted the ultimate burden of proof; “[i]nstead, it simply
requires a defendant demonstrate that the evidence he wishes
to present is relevant to the question at issue, viz., whether the
defendant’s negligence caused the plaintiff’s injury.” Voykin,
192 Ill. 2d at 56.
In applying the holding in Caley, Voykin reasoned:
“Without question, the human body is complex. A
prior foot injury could be causally related to a cur-
rent back injury, yet a prior injury to the same part
of the back may not affect a current back injury. In
most cases, the connection between the parts of
the body and past and current injuries is a subject
that is beyond the ken of the average layperson.
Because of this complexity, we do not believe that,
in normal circumstances, a lay juror can effectively
or accurately assess the relationship between a
prior injury and a current injury without expert
assistance. Consequently, we conclude that, if a
defendant wishes to introduce evidence that the
plaintiff has suffered a prior injury, whether to the
‘same part of the body’ or not, the defendant must
introduce expert evidence demonstrating why the
prior injury is relevant to causation, damages, or
some other issue of consequence. This rule applies
unless the trial court, in its discretion, determines
that the natures of the prior and current injuries
are such that a lay person can readily appraise the
relationship, if any, between those injuries without
expert assistance.” Id. at 59.
Applying its reasoning to the case at bar, the supreme court
held:
“This evidence does not come close to demonstrat-
ing what plaintiff’s ‘neck problems’ were, when he
suffered them, or when he last suffered from symp-
toms. Nothing about the evidence presented by
defendant has any tendency to make it less likely
that defendant caused plaintiff’s neck injury or
that defendant caused plaintiff to suffer damages.
Without expert testimony establishing both the
nature of plaintiff’s prior ‘neck problems’ as well as
the relationship between those prior problems and
plaintiff’s current claim, an average juror could not
readily appraise the effect of the prior problems
upon plaintiff’s current claim. Consequently, this
evidence should have been excluded.” Id. at 60.
The takeaway from Voykin is embodied in its conclusion
that, unless the natures of the prior and current injuries are
such that a lay person can readily appraise their relationship
without expert assistance, “if a defendant wishes to introduce
evidence that the plaintiff has suffered a prior injury, whether
to the ‘same part of the body’ or not, the defendant must
introduce expert evidence demonstrating why the prior injury
is relevant to causation, damages, or some other issue of conse-
quence.” Id. at 59. See, for example, the decision in Campbell
v. Autenrieb, 2018 IL App (5th) 170148 (applying Voykin and
summarizing appellate court decisions on the “same part of the
body rule,” in holding that the trial court abused its discretion
in permitting defense cross-examination of plaintiff’s treating
physician about the possibility of plaintiff’s back injury just
going out for no reason (i.e., idiopathic cause) or as a result of
lifting, twisting, or any of those type of activities).
Parenthetically, for a supreme court decision rejecting
the application of Voykin for justifying the refusal to admit
postaccident vehicular photographs, see Peach v. McGovern,
2019 IL 123456, discussed, supra, under the heading Peach
v. McGovern: Rejecting Prior Appellate Court Decisions in
Permitting Admissibility of Postaccident Vehicular Photographs
in the Author’s Commentary on Ill. R. Evid. 401.
cauSe and origin of fire
In Unitrin Preferred Insurance Co. v. Flaviu George Dobra,
d/b/a FGD Construction, 2013 IL App (1st) 121364, the
appellate court quoted IRE 702 and cited cases that provide
the basis for the admission of expert testimony (including pos-
sessing experience and qualications that afford an individual
knowledge not common to laypersons and which will aid the
trier of fact to reach its conclusions, and that such knowledge
can be obtained through practical experience, scientic study,
199ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 702
COMMENTARY CONTINUED
education, training, or research). Applying the rule and the
principles from the cited cases, the court upheld the admission
of the expert’s testimony that informed the jury which of two
conicting expert witnesses’ opinions on the cause and origin
of a re was correct, through a review of photographs of the
scene and the expert’s testing the two hypotheses developed by
the conicting re and origin experts through the application
of NFPA 921, the widely accepted method of testing in deter-
mining the cause and origin of res by the re investigation
community. In so doing, the appellate court held that the
expert’s testimony did not usurp the role of the jury, which was
free to disregard the expert’s testimony.
expert may provide opinion on perSon’S mental condition
without interviewing the perSon
In Rigoli v. Manor Care of Oak Lawn (West) IL, LLC, 2019
IL App (1st) 191635, the appellate court approved the admis-
sion of a doctor’s afdavit that, based on medical records he
reviewed, he concluded that the now-deceased occupant of a
nursing home could not have understood the arbitration agree-
ment she signed. The appellate court approved the admission
of the afdavit despite the fact that the doctor had never met
the woman who signed the agreement. In holding that a doctor
could base his opinion on medical records and his knowledge
of the side effects of the many medications a person ingested
within a relatively short time before she signed the arbitration
agreement and that there was no need to personally interview
that person to provide an opinion about her mental condition,
the court cited People v. Smith, 93 Ill. App. 3d 26, 34 (1981),
and People v. Newbury, 53 Ill. 2d 228, 236 (1972), for the
principle that “[a]n expert may opine on a person’s mental
condition even if the expert never interviewed the person.”
The court also cited Barefoot v. Estelle, 463 U.S. 880 (1983),
where the U.S. Supreme Court rejected the contention that a
defendant must be personally interviewed by a psychiatrist
before the psychiatrist can testify about that defendant’s future
dangerousness, holding that the fact that experts do not exam-
ine defendants goes to the weight of their testimony, not to its
admissibility.
expert opinion on poSSeSSion of drugS with intent to deliver
In People v. Starks, 2019 IL App (2d) 160871, the appellate
court approved of a police ofcer testifying as an expert “in
the area of drug investigations, delivery [and] possession with
intent to deliver.” Starks, at ¶ 18. The ofcer did not participate
in the case, which concerned the recovery of defendant’s 20
bags of cocaine weighing 9.9 grams. The ofcer reviewed the
police reports, the physical evidence, and the lab reports, and
he spoke to the ofcers involved in the case. Id. In forming his
opinion as to defendant’s intent, he “considered the totality of
the circumstances and items of evidence in the case, including
information that experts would commonly use, such as weight
of the drugs, the way the drugs were packaged, the lack of
user paraphernalia, the presence of cash, and the presence of
weapons.” Id. Based on those considerations, he opined that
defendant was a dealer rather than a user. Id.
crime-Scene analySiS
In People v. King, 2020 IL 123926, the supreme court agreed
with the many faults found by the appellate court in connection
with a former FBI proler’s expert testimony in the defendant’s
rst degree murder jury trial. In afrming the appellate court’s
reversal of the defendant’s conviction, the court held that the
witness “never should have been allowed to testify as an expert
in this case.” Id. at ¶ 36. The court found that the witness,
called to give evidence as to whether the location where the
deceased was found was staged, was not qualied to give
opinion evidence as to the cause and manner of the victim’s
death (two pathologists having given conicting opinions on
that issue), that the witness improperly gave expert opinions
on subjects that jurors could have determined for themselves,
and that the witness should not have been permitted to shore
up one party’s theory of the case when jurors could draw their
own conclusions from the evidence and the State could discuss
in closing argument the reasonable inferences that owed from
the evidence.
King is mandatory reading for those seeking to proffer or
oppose expert testimony on crime scene analysis.
rejection of profile teStimony
People v. Tondini, 2019 IL App (3d) 170370, provides
an example of the appellate court’s rejection of “prole
200RULE 702 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
testimony,” where a witness seeks to provide expert opinion
testimony concerning general observations about a subject
without being able to speak to the specic circumstances
surrounding the case—one who describes common practices,
habits, or characteristics that are not in any way connected to
a party or his circumstances. Id. at ¶¶ 24, 27. In Tondini, in
support of defendant’s self-defense theory connected to his
stabbing a woman with a knife, defendant proffered a witness
as a “violence dynamics” expert. Acknowledging the witness’s
expertise in matters involving self-defense training, but without
any knowledge concerning the decisive question as to whether
“defendant’s belief that it was necessary to use deadly force was
reasonable under the circumstances” (id. at ¶ 28), the appellate
court held that the witness “could not testify that defendant
stabbed the victim in self-defense.” Id. at ¶ 27.
Sampling of caSeS approving excluSion of opinion teStimony aS
not helpful
A sampling of cases that approved exclusion of expert
testimony, because the proffered evidence was not beyond
the understanding of ordinary people and was not difcult to
understand or explain, include: People v. Gilliam, 172 Ill. 2d
484 (1996) (expert testimony properly excluded as to whether
the defendant falsely confessed to protect his family); People
v. Carlisle, 2015 IL App (1st) 131144 (trial court properly
refused to admit expert testimony that sawed-off shotgun was
not dangerous because it was old and was not deadly from
distance it was red because a gun is per se a deadly weapon,
nor could the expert testify to what the defendant’s knew of
the shotgun’s capabilities); People v. Polk, 407 Ill. App. 3d
80 (2010) (trial court properly excluded expert testimony
about whether defendant’s low IQ and police interrogation
techniques could have resulted in a false confession); People
v. Bennett, 376 Ill. App. 3d 554 (2007) (proper for trial court
to exclude expert testimony that defendant was susceptible to
police interrogations and suggestions based on his intellectual
abilities); People v. Wood, 341 Ill. App. 3d 599 (2003) (proper
to exclude expert testimony that defendant was easily coerced
and susceptible to intimidation to support claim that his con-
fession was involuntary).
COMMENTARY CONTINUED
201ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 703
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in
the case that the expert has been made aware of or
personally observed. If experts in the particular eld
would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted. But if
the facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial
eect.
Rule 703. Bases of Opinion Testimony by Experts
e facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular eld in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
Author’s Commentary on Fed. R. Evid. 703
The plurality decision in Williams v. Illinois, 567 U.S. 50,
132 S. Ct. 2221 (2012) (discussed in the Author’s Commentary
on Ill. R. Evid. 703) has led to uncertainty and numerous federal
and state decisions addressing that case’s application under
Rule 703, with due regard for the problem due to the limita-
tions on evidence admissibility under the Sixth Amendment
Confrontation Clause under Crawford v. Washington, 541 U.S.
36 (2004). One such decision is United States v. Maxwell, 724
F.3d 724 (7th Cir. 2013).
confrontation clauSe not implicated by expert’S reliance on
data of another expert
In Maxwell, a forensic scientist, who had tested the sub-
stance recovered from the defendant and had found that it
contained cocaine base, had retired. Another forensic scientist
from the same crime laboratory testied at trial in his place.
She testied about how evidence in the crime lab is typically
tested to determine whether it contains a controlled substance,
that she had reviewed the data generated for the material in
the case, and that she reached an independent conclusion that
the substance contained cocaine base after reviewing that data.
She did not read from the other scientist’s report or vouch for
whether he followed standard testing procedures, nor did she
testify that she reached the same conclusions as he, nor was the
other scientist’s report introduced into evidence.
In its plain error review of whether the Sixth Amendment
Confrontation Clause was violated, the Seventh Circuit held
that the fact that the testifying forensic scientist relied on the
other scientist’s data did not deprive the defendant of his
Sixth Amendment rights, especially since she did not mention
what conclusions the other scientist had reached about the
substance. In so holding, the court offered the following rel-
evant analysis concerning its prior holdings in construing the
Williams decision:
“We already know that the government may not
introduce forensic laboratory reports or afdavits
reporting the results of forensic tests and use them
as substantive evidence against a defendant unless
the analyst who prepared or certied the report
is offered as a live witness subject to cross-exam-
ination. See Bullcoming v. New Mexico, 131 S.
Ct. 2705, 2710 (2011); Melendez-Diaz, 557 U.S.
[305] at 329. But, as we have explained before, ‘an
expert who gives testimony about the nature of a
suspected controlled substance may rely on infor-
mation gathered and produced by an analyst who
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
202RULE 703 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
does not himself testify,’ [United States v.] Turner,
709 F.3d [1187] at 1190, as ‘the facts or data’ on
which the expert bases her opinion ‘need not be
admissible in evidence in order for the [expert’s]
opinion or inference to be admitted.’ [United
States v.] Moon, 512 F.3d [359] at 361 (citing Fed.
R. Evid. 703). And this makes sense because the
raw data from a lab test are not ‘statements’ in any
way that violates the Confrontation Clause. Id. at
362.” Maxwell, 724 F.3d at 726-27.
confrontation clauSe iSSue avoided
United States v. Turner, 709 F.3d 1187 (7th Cir. 2013), the
case cited by Maxwell in the quote above, was remanded to the
Seventh Circuit Court of Appeals by the United States Supreme
Court for reconsideration in light of its Williams opinion. In
that case, a supervisor of the crime-laboratory chemist who
had analyzed substances that the defendant had distributed to
an undercover police ofcer testied that, in his opinion, the
substances contained cocaine base. Although the supervisor
had not personally performed the lab work, he reviewed the
work of the chemist who had done so, and he testied that the
chemist had followed standard testing procedures, and that he
reached the same conclusions she had concerning the nature
of the substances. In its 2010 opinion (U.S. v. Turner, 591 F.3d
928), the court had found that there was no Confrontation
Clause violation. In this revised decision, the court rst consid-
ered the diverse views of the justices in the Williams opinion. It
then noted that there were at least two aspects of this case that
distinguished it from the Williams case: (1) the chemist’s analy-
sis here was for the purpose of accusing a targeted defendant to
create evidence against him for use at trial, and (2) here, there
had been a jury trial. The court then stated: “Recognizing that
the divided nature of the Williams decision makes it difcult
to predict how the Supreme Court would treat [the chemist’s]
report, and in order to give Turner the benet of the doubt, we
shall assume that the nature of the report, particularly insofar
as it formally documented [the chemist’s] ndings for purposes
of the criminal case against Turner, is sufciently testimonial
to trigger the protections of the Confrontation Clause.” Turner,
709 F.3d at 1194. Nevertheless, concluding that “expert anal-
ysis and testimony are not invariably necessary to establish
the identity of the controlled substance which the defendant
is charged with distributing” (id.), the court concluded that the
error, if any, was harmless beyond a reasonable doubt because
other evidence in the case provided sufcient circumstantial
evidence that the questioned substances contained cocaine
base. Id. at 1194-97.
application of expert’S reliance under rule 703
Ambrose v. Roeckeman, 749 F.3d 615 (7th Cir. 2014), illus-
trates an application of FRE 703 that applies to both the federal
and the Illinois rule. In that case, Ambrose appealed from the
denial of his petition for habeas corpus, which alleged that his
involuntary commitment under the Illinois Sexually Dangerous
Persons Act (SDPA) (725 ILCS 205/0.01-205/12) had deprived
him of due process. His original commitment under the SDPA
was premised on his alleged sexual penetration of his ve-year-
old daughter and her ve-year-old friend. In a later hearing
on his recovery petition (see 725 ILCS 205/9), a psychiatrist
testied about two alleged prior out-of-state abuses based on
statements allegedly made by victims to social workers and
police. In his appeal, Ambrose contended that his counsel had
been ineffective in not challenging the psychiatrist’s testimony
about the out-of-state abuses. The Seventh Circuit held that
ineffective assistance of counsel had not been established, sim-
ply because there was no error. The rationale provided by the
court, which is relevant to both FRE and IRE 703 is as follows:
“The evidence was presented [at the hearing] not
to prove the abuse allegations, but to cast light on
the information considered by [the psychiatrist] in
the process of reaching her expert opinion. Such
evidence may properly be considered, as indi-
cated in Federal Rule of Evidence 703 which was
adopted by the Illinois courts. See Wilson v. Clark,
417 N.E.2d 1322, 1326-27 (Ill. 1981). Under that
rule, an expert may provide opinion testimony
which relies on facts and data that are not inde-
pendently admissible for the truth of the matter, as
long as it is the type of information that experts in
the eld would reasonably rely upon in forming
an opinion.***In this case, the testimony as to the
COMMENTARY CONTINUED
203ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 703
allegations of out-of-state abuse was elicited in
identifying the facts and data considered by [the
psychiatrist] in her evaluation of Ambrose, and
was not admitted as evidence of the abuse itself.
Rather than establishing that the abuse occurred,
it simply established that those allegations were
considered by [the psychiatrist] in her evaluation.”
Ambrose, 749 F.3d at 620.
Author’s Commentary on Ill. R. Evid. 703
difference between federal and illinoiS ruleS on diScloSure of
inadmiSSible data to the jury
The rst two sentences of IRE 703 are substantively identical
to FRE 703 both before the latter’s amendment solely for sty-
listic purposes effective December 1, 2011, and in its current
form. However, the last sentence of both the pre-amended and
current federal rule, which presents a balancing test other than
the one provided by Rule 403 for the disclosure of inadmissible
data and which was not present when the Illinois Supreme
Court adopted the rule in Wilson v. Clark, 84 Ill. 2d 186 (1981),
has not been adopted.
teSt for diScloSure of inadmiSSible data
By requiring that inadmissible facts or data may be disclosed
to the jury “only if their probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial
effect,” the third sentence of the federal rule totally reverses the
balancing standard provided by Rule 403, thus providing a pre-
sumption of nondisclosure in a federal case. The non-adoption
of the federal rule’s last sentence means that the provisions of
Rule 403 apply in Illinois. Therefore, in determining whether to
allow or deny the disclosure to the jury of inadmissible facts or
data that the expert reasonably relied upon, an Illinois court—
consistent with IRE 403—must determine whether the proba-
tive value of the disclosure is substantially outweighed by the
danger of unfair prejudice—a balancing test that, in contrast to
the test supplied in the federal rule, places the burden of proof
on the opponent of the evidence and provides a presumption
in favor of disclosure to the jury.
See People v. Lovejoy, 235 Ill. 2d 97 (2009) (noting that
“Illinois has not adopted the amended version of [Federal] Rule
703”). For more on this reasonable-reliance standard and why
it does not violate the rule against hearsay, see the supreme
court’s discussion in Lovejoy, where a medical examiner prop-
erly relied on a toxicologist’s determination through blood tests
that six different types of drugs were in the deceased’s body.
WarD and anDerson: reliance on and diScloSure of inadmiSSible
factS
In People v. Ward, 61 Ill. 2d 559 (1975), the supreme court
held that an expert may rely on reports that are substantively
inadmissible as long as experts in the eld reasonably rely on
such materials. In that case, however, the court did not explicitly
hold that it was proper for the expert (a psychiatrist) to reveal
the contents of the reports he relied upon in arriving at his
diagnosis. Later, in People v. Anderson, 113 Ill. 2d 1 (1986)—a
case involving an insanity defense where the issue addressed
was the disclosure to the jury of the contents of psychiatrists’
reports in previous matters, information relating to a previous
criminal offense, and information related by the defendant to
the diagnosing psychiatrist expert—the supreme court held
that “the logic underlying Rule 703 and this court’s decisions
in Ward and Wilson [v. Clark, 84 Ill. 2d 186 (1981)] compels
the conclusion that an expert should be allowed to reveal the
contents of materials upon which he reasonably relies in order
to explain the basis of his opinion.”
In Anderson, the court recognized that an “uninformed jury”
might misuse disclosed inadmissible hearsay evidence relied
upon by the expert, but it concluded that a limiting instruction
should forestall any such misuse and that a trial court could
reject such evidence by applying the standards now incorpo-
rated in Rule 403. As for the statements made by the defendant
to the diagnosing psychiatrist—statements that are not subject
to the hearsay exception provided for in IRE 803(4)(A), but
explicitly made subject in that rule to the provisions of IRE
703—the Anderson court pointed out that “Rule 703 makes
no distinction between treating and nontreating physicians and
COMMENTARY CONTINUED
204RULE 703 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
that either may express an opinion founded on any information
reasonably relied upon by experts in the eld.” Self-serving
statements, the court noted, “can adequately be brought out on
cross-examination of the expert.”
In Gillespie v. Edmier, 2020 IL 125262, the supreme court
afrmed the appellate court’s reversal of the trial court’s grant
of summary judgment in favor of the defendant manufacturer
of cast iron steps attached to a dump trailer. Plaintiffs, the wife
of the injured party and the injured party who suffered injury
from slipping and falling from the steps, alleged strict liability
against the manufacturer in designing, manufacturing, and
selling a defective and unreasonably dangerous product. In
his deposition testimony, plaintiff’s expert relied on OSHA and
other protocols for forming his expert opinions. In afrming the
reversal of the appellate court’s grant of summary judgment,
based on reliance on the expert’s deposition testimony, which
also included other bases for his opinions, three members of
the supreme court’s lead opinion agreed that, though the OSHA
and other protocols testied to by the expert were not properly
admissible as substantive evidence, it is proper for experts to
rely on such data for the limited purpose of explaining the basis
for his opinion. One justice did not participate in the decision.
The other three justices found that the lead opinion had
reached the correct conclusion, but wrote in special concur-
rence. The reasons provided by these justices for so writing and
their emphasis on the procedure to be led by trial judges are
noteworthy. The justices rst pointed out that the opinion may
have left “an incorrect impression that experts may always rely
on regulations and standards as a basis for their opinions and
must be allowed to testify to such evidence at trial to explain
the basis for their opinion in every circumstance.” Gillespie,
at ¶ 24. They contended that “[a]s a result, the opinion could
be misconstrued to impermissibly undermine the trial judge’s
role as a gatekeeper.” Id. The concurring justices’ emphasis
on the trial judge’s role as gatekeeper is signicant because
the supreme court has emphasized that “gatekeeper” is not
a role for the trial court in IRE 702 jurisprudence. In making
that role essential in IRE 703 jurisprudence, the concurring
justices heavily relied on the earlier supreme court decisions
in City of Chicago v. Anthony, 136 Ill. 2d 169 (1990) (where
the supreme court did not use the term “gatekeeper,” but did
apply principles consistent with that role), and Decker v. Libell,
193 Ill. 2d 250, 254 (2000) (“Trial courts routinely bar evidence
because it is irrelevant or unreliable, and we see no reason to
apply a different rule in this context. Under this approach, the
trial judge serves in a familiar role as ‘gatekeeper,’ barring testi-
mony that is not sufciently relevant or reliable to be admitted
into evidence”.) This emphasis on the role of the trial judge as
“gatekeeper” for admissibility of evidence is certainly worthy of
note where a determination of whether the trial judge should
allow admissibility, under IRE 703, of otherwise inadmissible
evidence reasonably relied upon by the expert in forming
opinions.
See also People v. Berrios, 2018 IL App (2d) 150824,
¶¶ 16-20, where, in a prosecution for violating a civil-case
order that the defendant not have contact with a street gang
member (see 720 ILCS 5/25-5(a)(3)), the appellate court held
that the police ofcer who testied as an expert on gangs prop-
erly relied, under IRE 703, on police gang information sheets.
The court emphasized that, though the information relied upon
was hearsay, it nonetheless was admissible to explain the basis
for the expert’s opinion. It also emphasized “that it is critical
to maintain the distinction between using information as the
basis for an expert’s opinion and treating that information as
fact. That otherwise inadmissible evidence may serve as the
basis for an expert’s opinion does not mean that the evidence
is admissible for some other purpose.” Berrios, at ¶ 20. Though
the foregoing analysis retains validity, it should be noted that in
People v. Murray, 2019 IL 123289, a majority of the supreme
court overruled the ultimate holding in Berrios to the extent
that it excused proof of each element related to establishing the
status of a “street gang.” (For more on Murray, see the Author’s
Commentary on IRE 705 infra under the heading entitled
People v. Murray: Supreme Court Disagreement on Rule 705.)
hypothetical queStionS
Although IRE 703 does not refer to hypothetical questions
as a method for establishing the bases for an expert’s opinion,
the adoption of the rule does not preclude their use—a use that
was prevalent before the codication of evidence rules. Indeed,
when jurors perceive that hypothetical facts are consistent with
COMMENTARY CONTINUED
205ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 703
the evidence presented, the use of hypothetical questions can
be very persuasive. The supreme court has provided the prereq-
uisites for the use of hypothetical questions as follows:
“Counsel has a right to ask an expert witness
a hypothetical question that assumes facts that
counsel perceives to be shown by the evidence.
The assumptions contained in the hypothetical
question must be based on direct or circumstantial
evidence, or reasonable inferences therefrom. The
hypothetical question should incorporate only the
elements favoring his or her theory, and should
state facts that the interrogating party claims have
been proved and for which there is support in the
evidence. On cross-examination, the opposing
party may substitute in the hypothetical those facts
in evidence that conform with the opposing party’s
theory of the case.
“It is within the sound discretion of the trial court
to allow a hypothetical question, although the sup-
porting evidence has not already been adduced, if
the interrogating counsel gives assurance it will be
produced and connected later. Evidence admitted
upon an assurance that it will later be connected
up should be excluded upon failure to establish
the connection.” Leonardi v. Loyola University
of Chicago, 168 Ill. 3d 83, 96 (1995) (citations
omitted).
Note that the principles contained in the nal paragraph
of the quote just above are consistent with IRE 104(b). Note,
too, that where a proffered hypothetical question is supported
by admitted evidence, the trial court abuses its discretion in
denying the asking of the question. Granberry v. Carbondale
Clinic, S.C., 285 Ill. App. 3d 54, 60 (1996).
ire 703’S application deSpite the confrontation clauSe
In In re Detention of Hunter, 2013 IL App (4th) 120299,
the appellate court held that, although the confrontation clause
holding in Crawford v. Washington, 541 U.S. 36 (2004), applies
to proceedings under the Sexually Dangerous Persons Act (725
ILCS 205/1 et seq.), “testimonial hearsay” obtained through
police reports and witness statements about the respondent’s
prior sexual activities was properly admitted during a jury
trial, not as substantive evidence, but through the testimony of
psychiatrists who, consistent with IRE 703, reasonably relied
upon the information in order to offer opinions about the
respondent’s sexual dangerousness.
sUtherlanD and Williams: iSSueS related to reaSonable reliance
and the confrontation clauSe
Worthy of note concerning the second sentence of IRE 703
are two Illinois Supreme Court cases involving DNA experts,
where confrontation-clause arguments were rejected.
In People v. Sutherland, 223 Ill. 2d 187 (2006), the expert
witness was an employee of the laboratory that performed
the human mtDNA analysis. She did not complete any of the
actual laboratory “bench work” on the evidence. The supreme
court rejected the defendant’s contention that the witness’s
testimony regarding the mtDNA results was improper without
the lab technician’s testimony, holding that it was sufcient that
the witness relied upon data reasonably relied upon by other
experts in her eld.
In People v. Williams, 238 Ill. 2d 125 (2010), the expert
witness was a forensic biologist employed by the Illinois State
Police Crime Lab. She matched the defendant’s DNA prole,
created at her laboratory from a blood sample taken from him,
to the DNA prole created by Cellmark Diagnostic Laboratory
from sperm taken from the victim’s vagina. No one from
Cellmark testied about the process that created the latter DNA
prole, including the fact that the prole was derived from the
semen identied in the vaginal swabs of the victim. Based
upon the expert’s testimony that Cellmark was an accredited
laboratory and that its testing and analysis methods were gen-
erally accepted in the scientic community, and noting that
the Cellmark report had not been admitted into evidence, the
supreme court rejected the defendant’s contentions of a viola-
tion of his Sixth Amendment right to confrontation, as well as
his arguments concerning lack of evidentiary foundation (both
of which included allegations concerning no direct evidence
about the sperm DNA prole from the victim’s vagina and the
proper functioning and calibration of Cellmark’s equipment),
holding that the expert’s use of the DNA prole created by
Cellmark constituted use of facts or data reasonably relied upon
COMMENTARY CONTINUED
206RULE 703 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
by experts in her eld, and that there was therefore a sufcient
foundational basis for her reliance on the Cellmark prole. The
court noted that the expert did not merely regurgitate facts from
the Cellmark prole, but relied upon it to conduct her own
independent comparison of the defendant’s DNA prole with
that of the sperm.
After granting certiorari, the United States Supreme Court, in
its decision in Williams v. Illinois, 567 U.S., 50 132 S. Ct. 2221
(June 18, 2012), afrmed the judgment of the Illinois Supreme
Court, but did so in a plurality opinion in which members of the
Court were sharply divided. The four-justice plurality offered as
the primary basis for its decision that, under Rule 703, an expert
may properly rely on statements that have not been admitted
as substantive evidence, that the expert may relate those state-
ments to the factnder, and that, because those statements are
related solely for the purpose of explaining the assumptions on
which the expert’s opinion rests, they are not offered for their
truth and thus they fall outside the scope of the confrontation
clause. The plurality offered as a second, independent basis for
its decision, that even if the report from Cellmark had been
admitted into evidence, there would have been no violation
of the confrontation clause because the report differed from
extrajudicial statements, such as afdavits, depositions, prior
testimony, and confessions that the clause was understood to
reach, and because the report was not primarily concerned
with accusing a targeted individual. The plurality opinion
emphasized the fact that this was a bench trial and that there
was no issue concerning a confused factnder, for the trial
judge was presumed to have knowledge concerning hearsay
issues, chain of custody, and the provisions of Rule 703.
Justice Breyer, one of those who joined in the plurality opin-
ion, would have preferred to have had reargument to clarify
the extent of post-Crawford opinions (i.e., Melendez-Diaz and
Bullcoming (see the discussion of them under the Author’s
Commentary on Ill. R. Evid. 803(8) infra)), but in the absence
of reargument, he adhered to his dissenting view in those cases
that the reports addressed in them were not “testimonial” and
thus not barred by the confrontation clause.
Though describing the plurality’s analysis as awed, Justice
Thomas joined the plurality as the fth vote. He concurred
with the plurality solely because he concluded that Cellmark’s
report lacked the requisite “formality and solemnity” to be
considered “testimonial” for confrontation clause purposes. He
considered the confrontation clause to reach such statements
as those in depositions, afdavits, and prior testimony or state-
ments resulting from “formalized dialogue,” such as custodial
interrogation, all of which bear indicia of solemnity.
The four-justice dissent focused on the fact that the expert’s
testimony informed the factnder (the trial court) that the test-
ing of the victim’s vaginal swabs had produced a male DNA
prole implicating the defendant. This, the dissent contended,
was contrary to the provisions of Rule 703, and was done to
prove the truth of the matter asserted and thus violated the con-
frontation clause. Interestingly, the dissent provided a simple
solution for what it deemed to be the error that occurred in the
Williams case:
“Had [the expert] done otherwise, this case would
be different. There was nothing wrong with [the
expert’s] testifying that two DNA proles—the one
shown in the Cellmark report and the one derived
from Williams’s blood—matched each other; that
was a straightforward application of [the expert’s]
expertise. Similarly, [the expert] could have
added that if the Cellmark report resulted from
scientically sound testing of [the victim’s] vaginal
swab, then it would link Williams to the assault.
What [the expert] could not do was what she did:
indicate that the Cellmark report was produced in
this way by saying that [the victim’s] vaginal swab
contained DNA matching Williams’s.” Williams,
132 S. Ct. at 2270 (emphasis in original).
In future cases, because of the diverse views expressed in
Williams, prosecutors are likely to present some of the chain of
evidence not produced in that case, or at least follow the rec-
ommendation of the dissent to make clear the Rule 703 nature
of the proffered evidence. As to the chain of evidence issue,
however, the majority’s footnote in the United States Supreme
Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009), has special signicance:
207ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 703
COMMENTARY CONTINUED
“we do not hold, and it is not the case, that anyone
whose testimony may be relevant in establishing
the chain of custody, authenticity of the sample,
or accuracy of the testing device, must appear in
person as part of the prosecution’s case. While the
dissent is correct that ‘[i]t is the obligation of the
prosecution to establish the chain of custody,’ this
does not mean that everyone who laid hands on the
evidence must be called. As stated in the dissent’s
own quotation, ‘gaps in the chain [of custody]
normally go to the weight of the evidence rather
than its admissibility.’ It is up to the prosecution to
decide what steps in the chain of custody are so
crucial as to require evidence; but what testimony
is introduced must (if the defendant objects) be
introduced live.” Melendez-Diaz, Note 1 (internal
citations omitted)
As a sequel to the Williams decision, note that in People
v. Williams, 2015 IL App (1st) 131359, the appellate court
afrmed the circuit court’s dismissal of Sandy Williams’ post-
conviction petition, rejecting his contention that his attorney
was ineffective in not providing three documents that would
have persuaded Justice Thomas to conclude that admission of
the DNA testimony violated his right to confrontation.
After the Illinois Supreme Court’s decision in Williams but
before the United States Supreme Court’s afrmance of that
decision, the appellate court had upheld the expert’s testimony
in a similar factual scenario in People v. Johnson, 406 Ill.
App. 3d 805 (2010). In People v. Negron, 2012 IL App (1st)
101194, a decision that post-dates the United States Supreme
Court Williams holding, the appellate court did likewise, and so
did the appellate court in People v. Nelson, 2013 IL App (1st)
102619, ¶¶ 46-70.
Additional confrontation-clause-related decisions are dis-
cussed in the Author’s Commentary on the Non-Adoption of
Fed. R. Evid. 807. Discussed there, inter alia, is application of
Crawford’s jurisprudence concerning the confrontation clause.
Many of the discussed cases are relevant to the “reasonable
reliance” application of the second sentence of IRE 703. They
include: the Illinois Supreme Court decisions in People v.
Barner, 2015 IL 116949, and People v. Leach, 2012 IL 111534
(more thoroughly discussed in the Author’s Commentary on
Ill. R. Evid. 803(8), and more directly related to the business
records exceptions to the hearsay rule of IRE 803(6) and (8),
rather than to IRE 703), and the United States Supreme Court
decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009); and Bullcoming v. New Mexico, 564 U.S.647 131 S.
Ct. 2705 (2011).
208RULE 704 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
Rule 704. Opinion on an Ultimate Issue
(a) In General—Not Automatically Objection-
able. An opinion is not objectionable just because it
embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness
must not state an opinion about whether the defendant
did or did not have a mental state or condition that
constitutes an element of the crime charged or of a
defense. ose matters are for the trier of fact alone.
Rule 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier
of fact.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Author’s Commentary on Ill. R. Evid. 704
IRE 704 is identical to FRE 704(a) before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. FRE 704(b), which is substantively identical in both
its pre-amended and current forms, however, was not adopted
because it is inconsistent with Illinois law.
See Freeding-Skokie Roll-Off Serv., Inc. v. Hamilton, 108
Ill. 2d 217 (1985) (adopting FRE 704 related to lay opinion
evidence); Zavala v. Powermatic, Inc., 167 Ill. 2d 542 (1995)
(citing prior Illinois cases allowing expert opinion evidence
on ultimate issues, and approving accident reconstruction
evidence even when an eyewitness was present); People v.
Richardson, 2013 IL App (2d) 120119, ¶¶ 18-19 (citing IRE
704 in rejecting defendant’s argument seeking to exclude lay
opinion evidence on the basis that it went to an ultimate issue
in the case).
In People v. Willett, 2015 IL App (4th) 130702, ¶ 98, without
citing IRE 704, but citing instead People v. Owens, 372 Ill. App.
3d 616, 620 (2007) and the supreme court decision cited in
the quote below, both of which predate the codication of the
Illinois Rules of Evidence, the appellate court stated:
“As this court noted in People v. Owens, 372 Ill.
App. 3d 616, 620, 874 N.E.2d 116, 119 (2007),
Illinois courts have rejected the so-called ‘ultimate
fact’ doctrine, which held that a witness may not
express his opinion as to the ultimate issue in a
case. Instead, ‘it is now well settled that a witness,
whether expert or lay, may provide an opinion on
the ultimate issue in a case. [Citation.] This is so
because the trier of fact is not required to accept
the witness’ conclusion and, therefore, such testi-
mony cannot be said to usurp the province of the
jury.’ People v. Terrell, 185 Ill. 2d 467, 496-97, 708
N.E.2d 309, 324 (1998).”
The principles provided by the earlier decisions in the quote
above—both of which predate Illinois’ codied evidence
rule—are now contained within IRE 704.
rejection of fre 704(b)
FRE 704(b), which was added in the aftermath of John
Hinckley’s attempt to assassinate President Reagan, has not
been adopted. In Illinois, a witness, properly qualied as an
expert, may give an opinion that will assist the trier of fact
regarding the mental state of the defendant at the time of the
alleged crime. See, e.g., People v. Ward, 61 Ill. 2d 559 (1975)
(citing the then-newly-adopted FRE 703 and the related advi-
sory commentary, and holding that an expert may give opinion
on sanity based upon personal observations and information
relied upon by experts in the eld); People v. Hope, 137 Ill. 2d
430, 489-90 (1990) (noting physician’s testimony about defen-
dant’s intoxication in relation to whether he acted intentionally
in shooting a police ofcer); People v. Sojack, 273 Ill. App. 3d
579, 584-585 (1995) (addressing State and defense expert psy-
chiatrist and psychologist testimony as to sanity of defendant).
COMMENTARY
209ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 705
Rule 705. Disclosing the Facts or Data Underlying
an Expert’s Opinion
Unless the court orders otherwise, an expert may
state an opinion—and give the reasons for it—without
rst testifying to the underlying facts or data. But the
expert may be required to disclose those facts or data on
cross-examination.
Rule 705. Disclosure of Facts or Data Underlying
Expert Opinion
e expert may testify in terms of opinion or
inference and give reasons therefor without rst testi-
fying to the underlying facts or data, unless the court
requires otherwise. e expert may in any event be
required to disclose the underlying facts or data on
cross-examination.
Author’s Commentary on Ill. R. Evid. 705
IRE 705 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. In Wilson v. Clark, 84 Ill. 2d 186 (1981), the decision
that adopted pre-amended FRE 703, the supreme court also
adopted FRE 705.
burden on oppoSing party to develop factS
Pursuant to the rule’s provisions and the holding in Wilson v.
Clark, 84 Ill. 2d at 194, the burden of eliciting facts underlying
the expert opinion is placed on the opposing party. For that
reason, in People v. Wright, 2012 IL App (1st) 073106, ¶¶ 117-
130, the appellate court held that, because the cross-examiner
has the burden of developing the facts underlying an expert’s
opinion, the trial court abused its discretion in curtailing the
cross-examination of the expert witness regarding the signi-
cance of an Arizona study related to a nine-loci DNA match.
In City of Chicago v. Eychaner, 2015 IL App (1st) 131833,
an appeal from a trial on just compensation after the City of
Chicago exercised its power of eminent domain to take the
defendant’s property, one of the bases for the reversal and
remand of a favorable judgment for Chicago was the trial court’s
error in disallowing defendant from probing the sufciency of
an expert’s assumptions and the soundness of his opinions.
The relevant principles articulated by the appellate court were
these:
“Facts, data, and opinions which form the basis of
the expert’s opinion but which are not disclosed
on direct may be developed on cross-examination.
The cross-examiner may also elicit, emphasize,
or otherwise call attention to facts or opinions
avoided or minimized on direct examination. (id.
at ¶ 101 (citations omitted))***The weaknesses and
strengths of assumptions underlying an expert’s
opinion constitute an area rightly explored and
challenged on cross-examination. See People
v. Pasch, 152 Ill. 2d 133, 179 (1992) (holding
cross-examiner may probe expert’s qualications,
experience, sincerity, weaknesses in basis, suf-
ciency of assumptions, soundness of opinion, and
material reviewed but not relied on). [Defendant]
was entitled to impeach [the expert] on cross-ex-
amination with his own opinion. This would
undermine the reliability of [the expert’s] valuation
opinion.” Id. at ¶ 104.
That the burden is on the party-opponent, however, should
not serve as an automatic incentive for the proffering party’s
withholding the facts supporting the expert’s opinion. In most
instances, the underlying facts result in credibility for the expert
and weight for the expert’s opinion. Validity for the expert’s
opinion is rooted in the underlying facts, especially when they
provide logical reasons for the opinion.
PeoPle v. mUrray: Supreme court diSagreement on rule 705
In People v. Murray, 2019 IL 123289, a jury convicted the
defendant of rst-degree murder and unlawful possession of a
rearm by a street gang member (720 ILCS 5/24-1.8(a)(1)(a)).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
210RULE 705 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
The defendant did not appeal the murder conviction, so the
propriety of the rearm conviction was the only issue reviewed
by the Illinois Supreme Court.
A four-member majority of the court reversed the rearm
conviction. It held that a detective’s testimony, as an expert wit-
ness on street gangs, failed to provide the jury all the elements
listed in section 10 of the Illinois Streetgang Terrorism Omnibus
Prevention Act (“the Act”; 740 ILCS 147/10), thus failing to
dene the Latin Kings—the defendant’s alleged gang—as a
street gang. The elements required by the Act include evidence
that establishes the alleged street gang was involved in “a
course or pattern of criminal activity” involving two or more
gang-related felony offenses during specied time periods.
Based on the absence of such evidence, the majority held that
the State had failed to establish the street gang status of the
Latin Kings, and it thus failed to establish that the defendant
was a street gang member.
The four justices in the majority agreed that, because the
expert witness had not provided evidence that satised the
Act’s statutory denitions of “street gang,” the State failed to
offer sufcient evidence to make its prima facie case. But two of
the four justices in the majority provided an opinion in special
concurrence refusing to join with the other two justices in
their additional holding that IRE 705 (which is substantively
identical to its federal counterpart) “unambiguously requires”
experts to explain the reason underlying their opinions. The
two specially concurring justices contended that the majority’s
reliance on that aspect of its opinion created tension with the
court’s long-standing statements in Wilson v. Clark, 84 Ill. 2d
186 (1981) and its progeny and, contending that the portion
of the opinion that relied on it was unnecessary, they rejected
even the notion that Rule 705 applied, pointing out that “we
need not consider how, or even if, Rule 705 and Wilson apply.”
Murray. at ¶ 60.
In a lengthy dissent, three members of the court contended
that the expert witness’s testimony was sufcient to prove that
the Latin Kings was a street gang and that the majority’s inter-
pretation of the Act “will require the introduction of prejudicial
evidence to convict a defendant based on crimes he personally
may well have not committed or been involved in.” Murray.
at ¶ 71. Relevant to the interpretation of Rule 705, the dissent
contended that the majority’s holding regarding the rule (an
interpretation which, it must be stressed, had the concurrence
of only two justices) contravenes controlling law, focusing on
Wilson and other supreme court precedent, as well as Rule 705
itself and its interplay with IRE 703.
There are two takeaways from Murray, one based on a rule
of evidence and the other relevant to prosecutions involving
the offense of unlawful possession of a rearm by a street gang
member:
• Only two justices called for a different interpre-
tation of Rule 705 than that provided by Wilson v.
Clark and its progeny—an interpretation that has
established the principles that an expert witness
need not provide the underlying facts or data for
an opinion and that the burden of attacking the
opinion is placed on the party-opponent. The
Wilson interpretation and that of its progeny has
therefore not been altered.
• Based on the holding of four of the seven jus-
tices, in future cases the State must accommodate
the requirements of section 10 of the Illinois
Streetgang Terrorism Omnibus Prevention Act for
the presentation of prima facie evidence to prove a
street gang’s identity.
croSS-examination on expert’S own reportS and reportS of
other expertS
In People v. Pasch, 152 Ill. 2d 133 (1992), the supreme court
held that, in addition to the propriety of examining an expert on
reports that the expert relied upon (see People v. Silagy, 101 Ill.
2d 147, 171-72 (1984)), it is proper to question experts (in this
case, psychiatrists testifying about the sanity of the defendant)
concerning other experts’ reports and conclusions not relied
upon by the experts in forming their opinions, as long as the
other experts’ reports are not substantively admitted.
In Karn v. Aspen Commercial Painting, Inc., 2019 IL App
(1st) 173194, a personal injury lawsuit, the appellate court held
that, where an expert’s opinion is based in part on false infor-
mation (in this case, reliance on a surveillance video depicting
activities of a person whom the expert incorrectly assumed
211ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 705
to be the plaintiff), the opposing party is entitled to question
the expert about the information upon which his opinion was
based, and the trial court’s refusal to allow such cross-examina-
tion constituted reversible error.
Though not related to cross-examination of experts about
other expert opinions related to the same case, two Seventh
Circuit decisions are noteworthy concerning cross-examination
about faulty expert opinions in a separate case. In both United
States v. Rivas, 831 F.3d 931 (7th Cir. 2016) and United States
v. Bonds, 922 F.3d 343(7th Cir. 2019), defendants sought to
challenge the accuracy of ngerprint identication by introduc-
ing evidence about the FBI’s 2004 error in identifying Brandon
Mayeld as a person whose ngerprints suggested involvement
in a terrorist bombing in Spain, resulting in his incarceration
for more than two weeks before the FBI acknowledged its
mistake. Both decisions held that the district court properly
denied admission of the evidence; in Bonds the court rejected
the defendant’s effort to distinguish Rivas based on the fact
that the ngerprint examiner worked in the same division that
mistakenly identied Mayeld. Both decisions emphasized the
defendant’s ability to challenge the accuracy of the procedures
used without reference to the Mayeld case.
Split deciSionS regarding foundational requirementS for
fingerprint evidence, and deciSionS applying rule 705 for
balliSticS, dna, and Shoeprint evidence
As described below, there is a split in the holdings of the
appellate court regarding the admissibility, as opposed to the
weight, of expert ngerprint evidence. As backdrop, note that
in People v. Campbell, 146 Ill. 3d 363 (1992), in pointing
out that in one case a ngerprint expert found ve points of
similarity and in another four, the supreme court noted that
no Illinois case has expressly set out the minimum number of
points of similarity that are required to constitute a match of a
latent print to an exemplar.
In People v. Safford, 392 Ill. App. 3d 212 (2009), the
appellate court held that there was an insufcient foundation
for admissibility of a ngerprint expert’s opinion, where the
expert listed no points of comparison in his report; did not
record how or why he reached his conclusion that the latent
print matched the known print; and, though he testied that
based on his examination the latent print was defendant’s, he
gave no testimony as to how he arrived at his conclusion that
the latent print could belong only to the defendant. In reversing
the defendant’s conviction, the appellate court applied the de
novo standard of review, and held that the evidence provided
an insufcient foundation for the admissibility of the ngerprint
expert’s opinion, for the defendant had been deprived of the
ability to effectively cross-examine the expert, and an adequate
foundational basis for admissibility was essential for the jury
to assess the credibility and weight of the expert’s testimony.
Pointing out that, in People v. Ford, 239 Ill. App. 3d 314 (1992),
admission of the ngerprint expert’s testimony was approved
even though that expert also did not testify to nding any par-
ticular number and features of like characteristics, the dissent-
ing judge in Safford contended that the expert’s testimony had
been properly admitted because it was related to the weight of
the expert’s opinion, not its admissibility.
Later, in People v. Negron, 2012 IL App (1st) 101194,
another panel of the First District referred to Safford as “an
outlier case,” noting that “no reported case since then has
held that there must be a minimum number of points of
ngerprint comparison or disclosure of a specic number of
points of similarity found by the expert.” Negron, at ¶ 44. The
Negron opinion cited the dissent in Safford, with one judge
writing a one-paragraph special concurrence underscoring his
“respectful disagreement with the majority holding in People
v. Safford” and his agreement with the dissent in that case. The
Negron court concluded its analysis by pointing out that, under
Rule 705, “the number of points of comparison is part of the
facts underlying the expert opinion and the burden was on the
defense to elicit such facts.” The court noted that the defendant
had “performed a vigorous cross-examination” of the expert
and that “the jury determined the weight of credibility was with
the State’s expert.” Negron, at ¶ 45.
In People v. Cline, 2020 Ill App (1st) 172631, appeal
allowed November 18, 2020, Docket No. 126383, a decision
with Safford implications, the appellate court reversed with-
out remand a bench trial residential burglary conviction that
was based on the ngerprint expert’s determination that the
ngerprint found in the burglarized premises on a case for
COMMENTARY CONTINUED
212RULE 705 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
COMMENTARY CONTINUED
a missing headphone, the determination of which was based
on “analysis,” “comparison,” and “evaluation”—three prongs
of the accepted standard analytical procedure of ACE-V for
matching prints—because the expert did not provide evidence
of “verication” by another expert, which is the fourth prong of
ACE-V procedure. Rejecting the State’s argument that the testi-
mony was merely foundational and not part of the substantive
evidence, in a supplemental opinion on denial of rehearing,
the court held that the proper performance of testing protocol
is a necessary substantive element of the expert’s testimony and
the absence of such testimony results in a missing substantive
element. The decision does not address IRE 705 nor the gen-
erally accepted principle that the burden of rebutting expert
testimony is on the opposing party. Note that on November
18, 2020, the supreme court granted leave to appeal in Cline
(Docket No. 172631), so it will have the nal say on the admis-
sibility of the ngerprint evidence.
Note, too, that in People v. Cross, 2021 IL App (1st), where
an expert on latent ngerprint examination described the ACE-V
methodology but, as in Cline, did not testify that he performed
the verication by an independent examiner required under
that methodology, the defendant, who had not objected at trial
to the admissibility of the examiner’s testimony, contended
that, because verication was not satised, the examiner’s
testimony was improperly admitted. Reasoning that “ issues
regarding an expert’s application of techniques go to the weight
of the evidence, rather than its admissibility” (Cross, at ¶ 21),
the examiner’s testimony was not improperly admitted.
People v. Simmons, 2016 IL App (1st) 131300, ¶¶ 106-
131, which dealt with ballistics comparison, also challenged
Safford. Citing numerous Illinois Supreme Court decisions,
the appellate court pointed out that Safford’s holding that
the de novo standard of review applies to the determination
of whether there was a sufcient foundation for an expert’s
testimony was based on inappropriate authority. It further
pointed out that, based on numerous supreme court decisions,
the proper standard of review is abuse of discretion. Finally,
it concluded that Safford’s analysis was awed, and that the
expert’s testimony about ballistics comparison in this case, like
the ngerprint comparison in Safford—testimony that, in this
case, reected the expert’s inability to specify which individual
characteristics of the compared bullets matched—went to the
weight of the testimony and not to its admissibility.
People v. Robinson, 2018 IL App (1st) 153319, ¶¶ 17-19
also addressed the eld of ballistics identication. It agreed
with the line of cases that applied abuse of discretion as the
standard of review, rejecting Safford’s holding that the standard
was de novo. Pointing out that Safford “has been heavily criti-
cized, and characterized as an ‘outlier,’” and that it could “nd
no published case following Safford’s reasoning,” the appellate
court held “[i]t is the defendant’s right and burden to elicit the
facts underlying an expert’s opinion in cross-examination.”
People v. Bradford, 2019 IL App (4th) 170148, is another
decision that addresses the propriety of expert opinion on
ballistics. Citing Robinson and Simmons, it follows the line
of decisions that disagrees with the holding in Safford. The
appellate court held that the defendant could not satisfy the
two Strickland prongs in contending that his counsel rendered
ineffective assistance by not objecting to what he claimed was
unreliable rearm expert’s testimony due to an inadequate
foundation for her testimony.
People v. Wilson, 2017 IL App (1st) 143183, is another
appellate court decision that declined to follow Safford. The
issue in Wilson was whether the State’s DNA evidence lacked
an adequate foundation because the Illinois State Police foren-
sic scientist did not explain how she came to the conclusion
that the DNA prole on a hat matched the defendant’s DNA
prole. Citing both FRE 705 and IRE 705 and the supreme
court’s statement in Wilson v. Clark, 84 Ill. 2d 186, 194 (1981),
that “under Rule 705 the burden is placed upon the adverse
party during cross-examination to elicit the facts underlying the
expert witness,” the court held that, because “the basis of [the
forensic expert’s] opinion was a matter for cross-examination,
[her] failure to disclose it on direct examination did not under-
mine the foundation of her testimony.” Wilson, at ¶ 43.
In People v. Simpson, 2015 IL App (1st) 130303, though
not expressly rejecting Safford, the appellate court cited IRE
705 in holding that the burden was on the defendant to elicit
the number of points of comparison that existed between the
defendant’s shoe and a footwear impression found at the scene
213ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 705
COMMENTARY CONTINUED
of the crime. Reasoning that “Rule 705 permits an expert to
give an opinion without divulging the basis for it and shifts
the burden to the opposing party to elicit and to explore the
underlying facts or data on cross-examination,” the appellate
court held that “[a]ny issues regarding the details [the expert]
provided to support her opinion that Simpson’s shoeprint
matched the shoeprint found at the crime scene went to
weight, not admissibility.” Simpson, at ¶¶ 37, 38. The court
therefore afrmed the trial court’s admission of the expert’s
shoeprint-comparison evidence.
Note that the Seventh Circuit Court of Appeals decision in
United States v. Herrera, 704 F.3d 480 (7th Cir. 2013), offers
an interesting discussion concerning opinion evidence related
to ngerprint comparison and DNA analysis, and concerning
admissibility versus weight of evidence.
deStroyed noteS imported into expert’S report
In In re the Commitment of Steven Tungent, 2018 IL App
(1st) 162555, an appeal from the trial court’s revocation of the
conditional release of the respondent who had been adjudi-
cated a sexually violent person, the appellate court held that
the trial court did not abuse its discretion in allowing testimony
by a psychologist, a Department of Human Services supervisor,
who failed to maintain her notes from interviews she con-
ducted with the respondent and with a licensed clinical social
worker who was respondent’s conditional release supervisor.
The psychologist testied that she destroyed the notes from her
interviews once she drafted her report, and that the information
from her notes was included in her report. Pointing out that the
respondent had the opportunity to cross-examine the psychol-
ogist and citing IRE 705’s provisions and the fact that the rule
places the burden on the adverse party during cross-examina-
tion to elicit facts underlying the expert opinion, the appellate
court held that the trial court had not abused its discretion in
allowing the psychologist to testify. Tungent, at ¶ 46.
214RULE 706 ARTICLE VII. OPINIONS AND EXPERT WITNESSES
Rule 706. Court-Appointed Expert Witnesses
(a) Appointment Process. On a party’s motion or
on its own, the court may order the parties to show
cause why expert witnesses should not be appointed
and may ask the parties to submit nominations. e
court may appoint any expert that the parties agree on
and any of its own choosing. But the court may only
appoint someone who consents to act.
(b) Expert’s Role. e court must inform the
expert of the expert’s duties. e court may do so in
writing and have a copy led with the clerk or may do
so orally at a conference in which the parties have an
opportunity to participate. e expert:
(1) must advise the parties of any ndings the
expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any
party; and
(4) may be cross-examined by any party, includ-
ing the party that called the expert.
(c) Compensation. e expert is entitled to a
reasonable compensation, as set by the court. e
compensation is payable as follows:
(1) in a criminal case or in a civil case involving
just compensation under the Fifth Amendment,
from any funds that are provided by law; and
(2) in any other civil case, by the parties in the
proportion and at the time that the court directs
— and the compensation is then charged like other
costs.
(d) Disclosing the Appointment to the Jury. e
court may authorize disclosure to the jury that the court
appointed the expert.
(e) Parties’ Choice of eir Own Experts. is
rule does not limit a party in calling its own experts.
[FRE .]
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
215ARTICLE VII. OPINIONS AND EXPERT WITNESSES RULE 706
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 706
Illinois has not adopted a counterpart to FRE 706. In regard
to FRE 706(a), however, note that Illinois statutes and rules give
the court power to appoint experts in certain situations. See,
for example, Illinois Supreme Court Rule 215(d) (appointment
of impartial medical examiner); 725 ILCS 5/115-6 (defense of
insanity); 725 ILCS 205/4 (sexually dangerous persons); 405
ILCS 5/3-804 (commitment of mentally ill persons); 750 ILCS
45/11 (blood test in paternity actions).
See also section 604.10(b) of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/604.10(b), added by
Public Act 99-90, effective January 1, 2016), which allows the
court to seek the advice of professional personnel regarding
issues of child custody. And see Heisterkamp v. Pacheco, 2016
IL App (2d) 150229 (addressing the same Act’s section 604(b),
which was repealed by Public Act 99-90, effective January
1, 2016, and replaced by section 604.10, which has similar
provisions, and holding, in conformity with the Seventh Circuit
and other Illinois Appellate Court decisions, that an expert
appointed by the court possesses absolute immunity).
Though FRE 706(c) has not been adopted, note that in
Illinois, where the court has discretion to appoint an expert,
the inherent power of the court allows for appropriate compen-
sation to be paid.
Though FRE 706(d) has not been adopted, note that in
Illinois a jury should not be advised of the court-appointed
status of an expert witness. Morrison v. Pickett, 103 Ill. App. 3d
643, 645 (1981) (holding that although references to the fact
that a physician examined a plaintiff pursuant to court order
are highly inappropriate, such references do not necessarily
constitute reversible error, especially where the party failed to
object).
Though FRE 706(e) has not been adopted, note that Illinois
gives parties discretion to choose their own experts. See
McAlister v. Schick, 147 Ill. 2d 84, 99 (1992) (in afrming the
constitutionality of the afdavit requirement of section 2-622 of
the Code of Civil Procedure, holding that “[j]ust as he selects
his own expert witness at a trial, the plaintiff can interview
any number of medical professionals before nding one who
agrees with him that his case has merit”).
COMMENTARY
217
ARTICLE VIII. HEARSAY
RULE 801
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE VIII. HEARSAY
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 801. Denitions at Apply to is Article;
Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying
at the current trial or hearing; and
(2) a party oers in evidence to prove the truth of
the matter asserted in the statement.
(d) Statements at Are Not Hearsay. A statement
that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. e
declarant testies and is subject to cross-examination
about a prior statement, and the statement:
(A) is inconsistent with the declarant’s tes-
timony and was given under penalty of perjury
at a trial, hearing, or other proceeding or in a
deposition;
(B) is consistent with the declarant’s testimony
and is oered
(i) to rebut an express or implied charge
that the declarant recently fabricated it or acted
from a recent improper inuence or motive in
so testifying; or
(ii) to rehabilitate the declarant’s credibility
as a witness when attacked on another ground;
or
(C) identies a person as someone the declar-
ant perceived earlier.
(2) An Opposing Party’s Statement. e state-
ment is oered against an opposing party and:
(A) was made by the party in an individual or
representative capacity;
Rule 801. Denitions
e following denitions apply under this article:
(a) Statement. A “statement” is (1) an oral or writ-
ten assertion or (2) nonverbal conduct of a person, if it
is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes
a statement.
(c) Hearsay. “Hearsay” is a statement, other than
one made by the declarant while testifying at the trial
or hearing, oered in evidence to prove the truth of the
matter asserted.
(d) Statements Which Are Not Hearsay. A state-
ment is not hearsay if
(1) Prior Statement by Witness. In a criminal
case, the declarant testies at the trial or hearing
and is subject to cross-examination concerning the
statement, and the statement is
(A) inconsistent with the declarant’s testimony
at the trial or hearing, and—
(1) was made under oath at a trial, hearing,
or other proceeding, or in a deposition, or
(2) narrates, describes, or explains an event
or condition of which the declarant had per-
sonal knowledge, and
(a) the statement is proved to have been
written or signed by the declarant, or
(b) the declarant acknowledged under
oath the making of the statement either in
the declarant’s testimony at the hearing or
trial in which the admission into evidence
of the prior statement is being sought or at
a trial, hearing, or other proceeding, or in a
deposition, or
(c) the statement is proved to have been
accurately recorded by a tape recorder,
videotape recording, or any other similar
electronic means of sound recording; or
218RULE 801
ARTICLE VIII. HEARSAY
COMMENTARY
(B) is one the party manifested that it adopted
or believed to be true;
(C) was made by a person whom the party
authorized to make a statement on the subject;
(D) was made by the party’s agent or employee
on a matter within the scope of that relationship
and while it existed; or
(E) was made by the party’s coconspirator
during and in furtherance of the conspiracy.
e statement must be considered but does not by
itself establish the declarant’s authority under (C); the
existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under
(E).
(B) one of identication of a person made
after perceiving the person.
(2) Statement by Party-Opponent. e state-
ment is oered against a party and is (A) the party’s
own statement, in either an individual or a represen-
tative capacity, or (B) a statement of which the party
has manifested an adoption or belief in its truth,
or (C) a statement by a person authorized by the
party to make a statement concerning the subject,
or (D) a statement by the party’s agent or servant
concerning a matter within the scope of the agency
or employment, made during the existence of the
relationship, or (E) a statement by a coconspirator
of a party during the course and in furtherance of
the conspiracy, or (F) a statement by a person, or
a person on behalf of an entity, in privity with the
party or jointly interested with the party.
Author’s Overview of the Hearsay Rules in Article VIII
Article VIII of the Evidence Rules begins with Rule 801,
providing denitions related to hearsay in subdivisions (a), (b),
and (c) and statements that are not hearsay in subdivision (d).
A later-numbered rule, Rule 802, presents the hearsay rule and
informs us that hearsay—dened in Rule 801(c) as an out-of-
court statement offered for the truth of the matter asserted—is
inadmissible, except as provided by “these rules” (i.e., other evi-
dence rules, thus previewing the rules that follow while taking
into account a rule such as Rule 104(a)), supreme court rules,
and statutes. Rules 801(d)(1) and (2), in turn, exclude from the
hearsay rule certain out-of-court statements made by witnesses
and party-opponents (either directly or through authorization
or adoption) that otherwise might t the denition of hearsay.
It does this by declaring that statements that satisfy the rule are
not hearsay at all (and thus are not even exceptions to the hear-
say rule, but may properly be characterized as exclusions from
the hearsay rule) and are therefore substantively admissible.
Rule 803 provides a host of exceptions to the hearsay rule,
in instances where it makes no difference whether the out-of-
court declarant is or is not available; and Rule 804 provides
ve exceptions to the hearsay rule, exceptions that apply only
where the out-of-court declarant is unavailable as a witness. All
of the statements subject to the exceptions provided by Rules
803 and 804, like the statements excluded from the hearsay
rule in Rule 801(d), are admissible substantively, i.e., they may
be relied upon by the trier of fact in determining the outcome
of the litigation.
Rule 805 provides that hearsay within hearsay is excluded
from the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule, and Rule 806
describes how the credibility of a declarant may be attacked or
supported whether or not the declarant is called as a witness.
Illinois has not adopted a “residual exception” to the hear-
say rule, such as that provided in FRE 807 but, as the author’s
commentary to the non-adoption of that federal rule indicates,
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
219
ARTICLE VIII. HEARSAY
RULE 801
COMMENTARY CONTINUED
Illinois has numerous exceptions to the hearsay rule provided
by statutes, all of which may be considered residual excep-
tions. The Confrontation Clause in the sixth amendment to the
U.S. Constitution allays concerns about the unreliability of
out-of-court, incriminating statements against an accused in a
criminal case. (See the Author’s Commentary on Non-Adoption
of Fed. R. Evid. 807).
Though the hearsay rule provides an evidentiary rule and
not a constitutional mandate, a similar concern about reliabil-
ity applies to the admission of a declarant’s out-of-court state-
ments to prove the truth of the matter asserted in both civil and
criminal cases: the concern that the trier of fact (with primary
focus on juries) might not properly evaluate statements made
outside its presence, and thus might give undue weight to such
evidence. The rationale underlying the rule against hearsay is
that out-of-court statements are not subject to cross-examina-
tion, frequently not under oath, and are not subject to the trier’s
review of the demeanor of the out-of-court declarant. To allay
those concerns, both the exclusions to the hearsay rule (in Rule
801(d)) and the exceptions to the rule (in Rules 803 and 804)
allow for the substantive admission of out-of-court statements
that are deemed to possess sufcient indicia of reliability.
Author’s Commentary on Ill. R. Evid. 801(a)
IRE 801(a) is identical to the wording of the federal rule
before the latter’s amendment solely for stylistic purposes
effective December 1, 2011. The 2011 amendment to the
federal rule resulted—without substantive change—in combin-
ing a “person’s oral assertion, written assertion, or nonverbal
conduct” in a single rule without subdivisions. In contrast, IRE
801(a) has two subdivisions. IRE 801(a)(1), which denes a
“statement” that is “an oral or written assertion,” is what the
hearsay rule typically addresses. IRE 801(a)(2), which offers a
separate denition of a statement as “nonverbal conduct of a
person, if it is intended by the person as an assertion,” is less
common.
People v. Neal, 2020 IL App (4th) 170869, a lengthy opinion
authored by Justice Robert Steigmann, provides signicant
insight into the rule’s second subdivision. The opinion con-
cerns the propriety of the admissibility of a phone bill and an
unopened envelope containing the defendant’s name and the
same address where the two documents and narcotics were
located and (along with other evidence) were attributed to
the defendant. The defendant contended that the documents
were improperly admitted as hearsay because, he argued, they
constituted nonverbal conduct used to prove “the truth of the
matter asserted”—that the defendant lived at the address listed
on the documents and that they were therefore intended as
an assertion under IRE 801(a)(2). In rejecting that argument
and approving the admission of the documents, the appellate
court cited numerous and varied favorable authorities and even
discussed opposing authorities. The court concluded, in what
it termed this matter of rst impression in Illinois, that “implied
assertions of fact contained within mail and other documents
are not hearsay.” Id. at ¶ 3; ¶¶ 145-48. The court stressed that
such documents (such as the phone bill and an envelope from
an insurance company in this case) did not constitute a hearsay
assertion that the defendant lived at the relevant address in
violation of IRE 801(a)(2), but were merely properly admitted
circumstantial evidence of the defendant’s relationship to the
relevant location.
PeoPle v. Collins: important anticipated Supreme court opinion
on hearSay
In People v. Collins, 2020 IL App (1st) 181746, appeal
allowed on November 24, 2021, Docket No. 127584, the
defendant ed from police and was apprehended after a
foot chase. After the defendant was apprehended, the ofcer
who had chased and ultimately arrested the defendant made
statements on his police radio about where the defendant had
dropped a black pistol, later recovered, during the chase. Those
statements were captured as audio on the ofcer’s body-worn
camera video. The issue on appeal focused on whether the
statements recorded on the ofcer’s body camera were improp-
erly admitted in evidence as hearsay during the jury trial for
unlawful possession of a weapon by a felon and for being an
armed habitual criminal.
A majority of a panel of the appellate court held that the
statements were inadmissible hearsay and rejected the State’s
contention that the Law Enforcement Ofcer Body-Worn
Camera Act, 50 ILCS 706/10-1 et seq., made the statements
220RULE 801
ARTICLE VIII. HEARSAY
“admissible irrespective of its compliance with hearsay rules.”
Collins, at ¶ 21. In doing so, the majority provided a lengthy
analysis for its rejection of section 10-30 of the Act, which
reads, “The [body-worn camera] recordings may be used as
evidence in any administrative, judicial, legislative, or disci-
plinary proceeding.” 50 ILCS 706/10-30. The majority also
rejected the State’s harmless error contention, thus reversing
the defendant’s convictions. It remanded the matter to the
circuit court for retrial.
The dissenting justice asserted that the trial court had prop-
erly admitted the recorded statements and that the majority
erred in nding the Law Enforcement Ofcer Body-Worn
Camera Act inapplicable, contending that there is no conict
with the Illinois Rules of Evidence and that the Act’s “explicit
purpose,” fortied by section 10-30, asserting that “[o]n its face,
the Act unambiguously allows ofcer body camera recordings,
including both audio and visual footage, to be admitted in a
judicial proceeding without any express limitation” Collins, at
¶ 59.
As noted, the supreme court has allowed the State’s petition
for leave to appeal in Collins, so it will make the nal determi-
nations concerning the hearsay issues in this case.
Author’s Commentary on Ill. R. Evid. 801(c)
IRE 801(c) is identical to the wording of the federal rule
before the latter’s amendment solely for stylistic purposes effec-
tive December 1, 2011. The denition it provides is consistent
with prior Illinois law. See People v. Carpenter, 28 Ill. 2d 116
(1963) (offering substantially the same denition of hearsay);
People v. Olinger, 176 Ill. 2d 326, 357 (1997) (“Hearsay evi-
dence is an out-of-court statement offered to prove the truth
of the matter asserted, and it is generally inadmissible due to
its lack of reliability unless it falls within an exception to the
hearsay rule”).
witneSS aS out-of-court declarant
Note that, except for the Rule 801(d)(1) analysis discussed
below, the fact that the witness is both the out-of-court declar-
ant and the witness is not relevant in hearsay analysis. In People
v. Lawler, 142 Ill. 2d 548 (1991), well before Illinois adopted
codied evidence rules, the supreme court reasoned as follows
about the non-admissibility of such evidence:
“The State argues that a statement from a witness
as to his own prior out-of-court statement cannot
violate the hearsay rule, because the witness will
testify at trial with the safeguards of an oath and
cross-examination, reducing the risk of perjured
testimony. Adoption of the State’s rationale would
essentially obliterate a good portion of the hearsay
rule. As has been noted, ‘[t]he presence or absence
in court of the declarant of the out-of-court state-
ment is *** irrelevant to a determination as to
whether the out-of-court statement is hearsay.’ M.
Graham, Cleary & Graham’s Handbook of Illinois
Evidence § 801.1, at 564-65 (5th ed. 1990). See
People v. Spicer (1979), 79 Ill. 2d 173, 179, 402
N.E.2d 169 (where this court held that prior incon-
sistent hearsay statements of an in-court witness
cannot be used as substantive evidence).”
In People v. Lambert, 288 Ill. App. 3d 450 (1997), also well
before Illinois’ adoption of codied evidence rules, the appel-
late court provided this explanation for the non-admission of
out-of-court statements even when the declarant is the witness:
“Illinois follows the common-law rule that, where
admission is allowed, a prior consistent statement
is permitted solely for rehabilitative purposes and
not as substantive evidence. The rationale for this
common-law rule is that corroboration by repeti-
tion preys on the human failing of placing belief
in that which is most often repeated. Credibility
should not depend upon the number of times a
witness has repeated the same story, as opposed
to the inherent trustworthiness of the story. Where
the common law applies and a prior consistent
statement is admitted into evidence, an instruction
from the court instructing the jury of its limited
rehabilitative purpose is proper.” Lambert, 288 Ill.
App. 3d at 457-58 (citations and internal quotation
marks omitted).
The quoted statement from Lambert is consistent with
Illinois’ common-law holdings on the non-admission, as
COMMENTARY CONTINUED
221
ARTICLE VIII. HEARSAY
RULE 801
substantive evidence (i.e., for the truth), of prior consistent
statements, which explains why FRE 801(d)(1)(B) was not
codied in the Illinois evidence rules. Consistent with the
quoted statement, in Illinois, prior consistent statements, even
those admitted “to rebut an express or implied charge against
the declarant of recent fabrication or improper inuence or
motive,” are admitted for rehabilitative purposes only, and not
admitted substantively as non-hearsay or as an exception to
the hearsay rule. See IRE 613(c), which provides the relevant
Illinois principles.
different analySiS under rule 801(d)(1)
Note, however, that the foregoing hearsay analysis differs
under FRE 801(d)(1)(A) and under IRE 801(d)(1)(A) and (B)
when the out-of-court declarant is also the witness. That is so
because, under the rst part of Rule 801(d)(1), an out-of-court
statement is not hearsay if “the declarant testies at the trial
or hearing and is subject to cross-examination concerning the
statement,” and the other requirements of the rule are satised.
In those instances, the fact that the out-of-court declarant and
the in-court witness is the same person is relevant to the sub-
stantive admissibility of the out-of-court-statement.
Note also that, pursuant to Crawford v. Washington, 541
U.S. 36 (2004), in a criminal case, certain “testimonial state-
ments” made out of court are not violative of the Confrontation
Clause and are allowed admissibility by statutes and rules,
where the out-of-court declarant is present in court and subject
to cross-examination.
StatementS offered for non-hearSay purpoSe
When an out-of-court statement is offered for a proper pur-
pose—other than “to prove the truth of the matter asserted”—it
is not hearsay. See, e.g., People v. Prather, 2012 IL App (2d)
111104 (where defendant was charged with the offense of com-
mitting an aggravated battery on a victim whom he knew was
pregnant, evidence from the victim that she showed defendant
a home pregnancy test that indicated she was pregnant was not
inadmissible as hearsay because it was not offered to establish
that the victim was pregnant, but to prove that defendant had
notice or knowledge of the substantial probability that the
victim was pregnant when he committed the offense); People v.
Carpenter, 28 Ill. 2d 116, 121 (1963) (using Wigmore’s example
of witness A testifying that “B told me that event X occurred.” If
A’s testimony is offered for the relevant purpose of establishing
that B said this, it is admissible; if offered to prove that event X
occurred, it is inadmissible); People v. Banks, 237 Ill. 2d 154
(2010) (approving admission of a series of ash messages over
police radios, holding that “admission of an out-of-court state-
ment that is not offered to prove the truth of the matter asserted
but rather to explain the investigatory procedure followed in
a case is proper,” and that confrontation clause was not vio-
lated because that clause “does not bar the use of testimonial
statements for purposes other than establishing the truth of
the matter asserted.”). See also Khungar v. Access Community
Health Network, 985 F.3d 565 (7th Cir. 2021) (in this Title VII
action, holding that the complaints against the plaintiff were
not hearsay because they were not offered to show that the
plaintiff in fact engaged in the conduct complained of, but to
show the state of mind of plaintiff’s supervising physician when
he made his recommendation regarding plaintiff’s termination
(Khungar, at 575)).
In People v. Moss, 205 Ill. 2d 139 (2001), where the defen-
dant was convicted of murdering his ex-girlfriend and her
daughter, and in People v. Lovejoy, 235 Ill. 2d 97 (2009), where
the defendant was convicted of murdering his stepdaughter,
evidence was admitted that the daughter of the ex-girlfriend in
Moss and the stepdaughter in Lovejoy had informed numerous
persons about the defendant’s sexual assaults against each of
them. In each case, the supreme court held that the evidence
of the statements about the sexual assaults was not introduced
to prove the fact that each victim had been sexually assaulted
by each defendant, but to establish the defendant’s motive for
killing that victim: that each victim had said that each defen-
dant had assaulted her. The truth of each victim’s out-of-court
statements was irrelevant; what was relevant was that each
victim’s statements provided a motive for each defendant’s
offense. In each case, the supreme court held that the victim’s
out-of-court statements were properly admitted—not to prove
the truth of the statements, but to provide a motive for each
defendant’s killing each victim.
An example of a case in which an out-of-court statement
should have been admitted in evidence to explain the effect on
COMMENTARY CONTINUED
222RULE 801
ARTICLE VIII. HEARSAY
the listener is McIntyre v. Balgani, 2019 IL App (3d) 140543,
¶¶ 91-96 (although ultimately concluding that its exclusion as
hearsay was harmless, holding that a statement by one physi-
cian to another physician about a patient’s care was not offered
to prove the truth of any factual matter asserted by the declarant
about his treatment recommendations being correct or medi-
cally sound, but rather to show why doctors subsequently acted
as they did). See also People v. Saulsberry, 2021 IL App (2d)
181027 (holding that evidence of a gang member’s order to
a trial witness, who was then a fellow gang member, to shake
the defendant’s hand, while informing the witness (the fellow
gang member) that defendant was “the one who took care of
it,”—referring to the shooting of a rival gang member, leading
to the handshake as a show of respect to defendant—was
admissible for its effect on the witness, and was not hearsay
(see id. at ¶¶ 74-88)).
inveStigatory procedureS
Though sometimes incorrectly referred to as an exception to
the hearsay rule, the “investigatory procedures” or the “course
of investigation” doctrine, allows the admission of evidence of
the investigation performed by law enforcement ofcers, which
includes interviews and conversations with witnesses, even
where an inference is created that ofcers received and acted
on the information related—as long as the contents of such
interviews or conversations are not disclosed.
For a discussion of “the course of investigation” doctrine,
see People v. Risper, 2015 IL App (1st) 130993, ¶¶ 39-42
(discussing cases in explaining how testimony recounting
steps taken in a police investigation does not violate either
the hearsay rule or a defendant’s sixth amendment right to
confront witnesses against him, as long as the substance of
statements made by nontestifying witnesses to an ofcer in the
course of investigation is not disclosed to the jury). See also
People v. Ochoa, 2017 IL App (1st) 140204 (citing cases and
emphasizing “distinction between an ofcer testifying to the
fact that he spoke to a witness without disclosing the contents
of that conversation and an ofcer testifying to the contents of
the conversation,” citing People v. Trotter, 254 Ill. App. 3d 514,
527 (1993)).
See also People v. Jones, 153 Ill. 2d 155 (1992) (holding
that a police ofcer may testify to investigatory procedures,
including the existence of conversations, as long as the sub-
stance of conversations does not go to the very essence of the
dispute); People v. Simms, 143 Ill. 2d 154, 174 (1991) (holding
that a police ofcer “may testify about his conversations with
others, such as victims or witnesses, when such testimony is
not offered to prove the truth of the matter asserted by the
other, but is used to show the investigative steps taken by the
ofcer. Testimony describing the progress of the investigation
is admissible even if it suggests that a nontestifying witness
implicated the defendant.”); People v. Johnson, 116 Ill. 2d 13
(1987) (though an ofcer’s testimony recounting steps taken in
the course of an investigation may be admissible without vio-
lating a defendant’s constitutional rights, detective’s testimony
that after his arrest codefendant implicated defendant and
said defendant was the gunman constituted hearsay); People
v. Davison, 2019 IL App (1st) 161094 (detective’s testimony
that after talking to others he began looking for three persons,
including defendant, was not hearsay because there was no
testimony about the source of the information, and defendant’s
right under the confrontation clause of the sixth amendment
was not violated); People v. Sardin, 2019 IL App (1st) 170544
(evidence that detective talked to the mother of an eyewitness
and then returned to the police station and generated a photo
array that included defendant did not violate the rule against
hearsay or the confrontation clause, for there was no evidence
about what the mother had said); People v. Short, 2020 IL
App (1st) 162168, ¶¶ 68-73 (detective’s testimony that he
investigated defendant after talking to codefendant may have
implied that codefendant implicated defendant, but it was
proper because there was no testimony about the content of
any statement by the codefendant).
Decisions in the Seventh Circuit Court of Appeals are some-
what similar to those in Illinois, but with a twist. Consistent with
Illinois decisions, in United States v. Silva, 380 F.3d 1018, 1020
(7th Cir. 2004), the court rejected the course of investigation
rationale for admitting evidence when the evidence was not
relevant except for its truth. In contrast, in its recent decision in
United States v. Law, 990 F.3d 1058 (7th Cir. 2021), the court
COMMENTARY CONTINUED
223
ARTICLE VIII. HEARSAY
RULE 801
approved the admission in evidence of “copious” statements
made to two Department of Homeland Security agents by
two women alleged to be victims of sex trafcking. Citing a
number of previous Seventh Circuit opinions which held that
“statements offered to ‘establish the course of the investiga-
tion,’ rather than to prove the truth of the matter asserted, are
nonhearsay and therefore admissible” (Law, at 1061), the court
reasoned that
“this complex investigation required explanation
and context. It involved several businesses,
multiple witnesses, and spanned two continents.
This case differs from Silva where the government
sought to admit evidence describing the “course
of investigation” that consisted solely of state-
ments spoken by a non-testifying informant.” Id.
at 1063. The court further reasoned that “unlike
the testimony in Silva, the contested statements
by the investigators here were corroborated by
the testimony of [the two women]. So even if the
government offered the testimony for its truth, it
would have been cumulative of other uncontested
evidence. Although the course of investigation
evidence in this case was ample, its admission
was not a subterfuge for the government to place
impermissible hearsay before the jury, and the
probative value of the evidence in explaining
the complex investigation outweighed any unfair
prejudice to Law.” Id.
The court also pointed out that the district court “repeatedly
and correctly instructed the jury that the portions of the agents’
testimony on these subjects could be considered only for the
limited purpose of explaining the investigation and not for their
truth.” Id.
StatementS offered for context
It often occurs that defendants in criminal cases object,
on the basis of hearsay, to statements made by police ofcers
while interrogating defendants. Three decisions of the appellate
court, where the court addressed the admissibility of statements
made by police ofcers while questioning defendants, are illus-
trative and demonstrate a somewhat different approach to the
issue. Seventh Circuit decisions also provide insight.
In People v. Theis, 2011 IL App (2d) 091080, ¶ 33, the
Second District held that “an out-of-court statement that is
necessary to show its effect on the listener’s mind or explain
the listener’s subsequent actions is not hearsay.” It then went
on to note that, without the detective’s statements, “defendant’s
answers would have been nonsensical.”
In People v. Hardimon, 2017 IL App (3d) 120772, the Third
District held that “[g]enerally, statements made by an investi-
gating ofcer during an interview with the suspected defendant
are admissible if they are necessary to demonstrate the effect
of the statement on the defendant or to explain the defendant’s
response.” Hardimon, at ¶ 36. The Hardimon court went on
to note, however, that the nal two-thirds of the interview
contained statements of the detectives that were denied by the
defendant and “served only to impermissibly bolster the State’s
case and iname the passions of the jury.” Id. at ¶ 37. The court
thus held that the statements made by the detectives in the nal
two-thirds of the interview with the defendant should not have
been admitted.
Finally, in People v. Whiteld, 2018 IL App (4th) 150948,
¶ 47, the Fourth District held that “[h]earsay is not involved
where a challenged statement ‘is admissible not for its truth,
but for its effect on the listener.’ People v. Britz, 112 Ill. 2d 314,
320, 493 N.E.2d 575, 578 (1986). In other words, ‘[a]n out-of-
court statement offered to prove its effect on a listener’s mind
or to show why the listener subsequently acted as he did is
not hearsay and is admissible.’” Whiteld, at ¶ 47. Citing both
Theis and Hardimon, the Whiteld court went on to note that
its decision is “mostly consistent” with those decisions, but it
differed with the holdings in those cases insofar as they allowed
admissibility of the questioning ofcer’s statements only “when
they are ‘necessary’ to show the effect of the statement on the
defendant or to explain the defendant’s subsequent actions.”
Whiteld, at ¶ 48. The court’s disagreement with the other
holdings was based on their requirement of “a higher degree
of probativeness regarding an ofcer’s statements or questions
through their use of the word ‘necessary.’” Id. The Whiteld
court explained:
COMMENTARY CONTINUED
224RULE 801
ARTICLE VIII. HEARSAY
“We nd that questions and statements by police
ofcers during a defendant’s interrogation may
still possess probativeness where they are simply
‘helpful,’ although perhaps not essential or ‘nec-
essary,’ to a jury’s understanding of the defendant’s
responses or silence.” Id.
Seventh Circuit decisions are in agreement with the general
holdings of Illinois decisions: When out-of-court statements
are offered to provide context for other admissible statements,
they are not hearsay because they are not admitted for their
truth. See e.g., United States v. Foster, 701 F.3d 1142 (7th Cir.
2012) (citing other cases and holding that recorded statements
of a condential informant admitted into evidence were not
hearsay because they provided context for defendant’s respon-
sive statements in sale of crack cocaine prosecution, and thus
did not violate the confrontation clause under the analysis
in Crawford); United States v. Norton, 893 F.3d 464 (7th Cir.
2018) (informant’s recorded statements provided context for
the statements and actions of other participants in the conver-
sations); United States v. Fernandez, 914 F.3d 1105 (7th Cir.
2019) (although ultimately deemed to be harmless, holding
that trial court’s restriction of cross-examination of police of-
cer about his side of the interrogation of a key witness against
defendant was error for it affected the ability of defendant to
establish the full content and context of the witness’s changing
stories); United States v. Jackson, 940 F.3d 347 (7th Cir. 2019)
(citing Foster and United States v. Gaytan, 649 F.3d 573 (7th
Cir, 2011) in holding that the recorded statements of a non-tes-
tifying condential source provided context for defendant’s
statements and did not trigger a confrontation clause violation).
See also United States v. Lewisbey, 843 F.3d 653 (7th Cir. 2016)
(holding text messages received by defendant were not hearsay
for they provided context for his own messages), and United
States v. Smith, 816 F.3d 379 (7th Cir. 2016) (by using examples
of conversations between hypothetical informant and defen-
dant, eschewing “context” and holding that statements were
neither hearsay or testimonial statements).
But note the Seventh Circuit’s rejection of “context” in
United States v. Pulliam, 973 F.3d 775 (7th Cir. 2020) (though
afrming defendant’s conviction of possession of a rearm by
a felon based on harmless error, holding that it was error for
the district court to admit the testimony of police ofcers that
they went to the location from which the defendant ed and
disposed of a handgun, based on a dispatcher’s report about
suspected drug sales at that location, because the reason why
the ofcers went to that location was not disputed at trial and
had no probative value concerning the charge of possessing a
gun).
queStionS and commandS are not hearSay
Citing its own precedent and that of other federal circuits,
the Seventh Circuit Court of Appeals pointed out that a question
is neither a “statement” nor an “assertion” under Rule 801(c).
U.S. v. Love, 706 F.3d 832 (7th Cir. 2013) (quoting the 1972
advisory committee’s note to FRE 801(a) that “nothing is an
assertion unless intended to be one,” in holding that a question
is not hearsay).
In contrast, United States v. Pulliam (cited in the last
paragraph of the heading just above) provides an example of
a situation where a question by a defendant while being inter-
viewed by police constituted a statement and thus was properly
excluded as inadmissible hearsay. In that case, involving defen-
dant’s possession of a handgun that police observed him throw
away while he ed from them, defendant denied possession of
the gun and asked “What gun?” In holding that the district court
properly excluded that statement, the 7th Circuit reasoned that
“‘what gun,’ in context, reads as a substantive assertion meant
to deny knowledge rather than a question meant to elicit a
response.” Pulliam, at 783-84.
Likewise, in Baines v. Walgreen Co., 863 F.3d 656 (7th Cir.
2017), the Seventh Circuit held that commands are not hearsay,
for “statements assert propositions that may be true or false.
They are distinct from other forms of communications, such as
questions or commands. [A] command is not hearsay because
it is not an assertion of fact.” Baines, 706 F.3d at 662, citing
United States v. White, 639 F.3d 331, 337 (7th Cir. 2011).
effect of not objecting to hearSay
“It is well established that when hearsay evidence is admit-
ted without an objection, it is to be considered and given its
natural probative effect.” Jackson v. Board of Review of Dept.
of Labor, 105 Ill. 2d 501, 508-09 (1985) (citing other supreme
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225
ARTICLE VIII. HEARSAY
RULE 801
court cases for the principle). For recent cases demonstrating
forfeiture for not objecting to hearsay, see In re C.J., a Minor,
2020 IL App (2d) 190824, ¶ 50, and In re Marriage of Francesco
Potenza and Vanessa Wereko, 2020 IL App (1st) 192454,
¶¶ 64-67, where the pro se respondent left the courtroom
during a hearing, despite the trial court’s admonition that issues
would be resolved without her input if she left.
Author’s Commentary on Ill. R. Evid. 801(d)(1)
fre 801(d)(1)(b) not adopted
FRE 801(d)(1)(B) was not adopted. That is so because Illinois
does not allow prior consistent statements to be admitted
substantively (i.e., for the truth of the statement), but only for
rebuttal or rehabilitative purposes, consistent with the common
law rule. See IRE 613(c), which is Illinois’ counterpart to FRE
801(d)(1)(B), and the commentaries addressing the rule’s
non-adoption infra.
ire 801(d)(1)(a)—baSed on an illinoiS Statute—applieS only in
criminal caSeS
In federal courts, FRE 801(d)(1)(A) applies both to civil and
criminal cases. In Illinois, IRE 801(d)(1)(A)(1) is substantively
identical to FRE 801(d)(1)(A), except that the Illinois rule does
not apply to civil cases. The Illinois rule applies only to criminal
cases. Thus, in Illinois civil cases, prior inconsistent statements
under oath have impeachment value, but they are not substan-
tively admissible as “not hearsay.”
Both IRE 801(d)(1)(A)(1) and IRE 801(d)(1)(A)(2) merely
codify section 115-10.1 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115-10.1), which is provided in the appendix
to this guide at Appendix I. Because that statute predates the
adoption of the Illinois Rules of Evidence, the codied rules
do not represent any change in Illinois law. Nevertheless, in
criminal cases, IRE 801(d)(1)(A)(2) signicantly expands the
scope of FRE 801(d)(1)(A).
Significance of the 801(d)(1)(a) ruleS
The 801(d)(1)(A) rules—both the federal and Illinois
versions—abrogate prior common law principles. That is so
because, under the common law, evidence of prior inconsis-
tent statements was admissible only for impeachment purposes
(i.e., only to cast doubt on the credibility of the witness’s tes-
timony). They were not admissible substantively (i.e., to prove
the truth of the matter asserted). The 1975 introduction of the
federal evidence rules altered that. FRE 801(d)(1)(A) provided
not only impeachment value to prior inconsistent statements
made under oath but also gave them substantive weight. The
1984 addition of section 115-10.1 to the Code of Criminal
Procedure did likewise in Illinois criminal cases, but it also
provided even more instances in which prior inconsistent state-
ments are admissible substantively in Illinois criminal cases (as
is illustrated in codied IRE 801(d)(1)(A)(2)).
The problem of turncoat witnesses was a primary basis for
the introduction of FRE 801(d)(1)(A); it was an even greater
incentive for the introduction of section 115-10.1 in Illinois.
ire 801(d)(1)(a)(1): prior inconSiStent StatementS under oath
In criminal cases (but not in civil cases), IRE 801(d)(1)(A)
(1), like FRE 801(d)(1)(A), allows substantive admissibility
(i.e., admissible to prove the truth of the matter asserted) for a
witness’s prior inconsistent statements made under oath. Under
the rule, such statements are admissible as “not hearsay,” and
the trier of fact is thus free to place weight on what the witness
testies to in court or on the inconsistent statement the witness
previously gave under oath.
example of an application of both ire 801(d)(1)(a)(1) and fre
801(d)(1)(a) where a prior inconSiStent Statement iS given under
oath
The recent Seventh Circuit decision in United States v.
Shaffers, ___ F.4th ___, No. 21-1134 (7th Cir. January 5, 2022),
illustrates an application not only of FRE 801(d)(1)(a) but also
of its identical counterpart (in criminal cases) in IRE (d)(1)(a)
(1). In that case, a prosecution for possession of a weapon by a
convicted felon, a witness, who had been a passenger in defen-
dant’s car where a gun attributed to defendant was recovered
by police, testied under oath before a federal grand jury that
she had not known there was a gun in the car, that she had seen
the police remove the gun from under the driver’s seat, and
that the gun was not hers. At trial, the witness disclaimed any
memory of the events in question or testifying before the grand
jury. Over a defense objection, the district court permitted her
grand jury testimony to be used as substantive evidence under
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226RULE 801
ARTICLE VIII. HEARSAY
FRE 801(d)(1)(A) (which, in a criminal case, is identical to IRE
801(d)(1)(A)(1)), and she read a transcript of that testimony to
the jury. Defendant’s counsel then cross-examined her. He
inquired into her lack of memory and asked if it was because
she had been drinking on the night of her arrest. Counsel
also questioned whether she was claiming not to remember
anything because she feared prosecution. And he asked her to
conrm that the government was paying for her airline ticket
and hotel during the trial, which she did.
On appeal from his conviction, in response to defendant’s
contention that the district court’s decision allowing the
grand jury testimony as substantive evidence violated the
Confrontation Clause, the circuit court held that admission
of the witness’s grand jury testimony did not violate the
Confrontation Clause, because defendant had an opportunity
to cross-examine the witness and expose weaknesses in her
answers to the jury. In support of its holding, the Seventh Circuit
cited numerous United States Supreme Court and Seventh
Circuit decisions justifying the admission of prior testimony
given under oath at a trial or hearing, where the witness testi-
es inconsistent withe that prior testimony or, as here, claims
memory loss and is subject to cross-examination.
ire 801(d)(1)(a)(2): broader admiSSibility of prior inconSiStent
StatementS
In criminal cases, moreover, IRE 801(d)(1)(A)(2), unlike both
FRE 801(d)(1)(A) and IRE 801(d)(1)(A)(1), but in conformity
with section 115-10.1 (available at Appendix I), also gives
substantive weight, as “not hearsay,” to a prior inconsistent
statement—without an oath requirement—of a witness where
that prior inconsistent statement narrates, describes, or explains
events or conditions about which the witness had personal
knowledge, when:
(a) the prior statement is proved to have been
written or signed by the witness, or
(b) the witness acknowledges at the relevant
proceeding or another proceeding or deposition
having made the prior statement, or
(c) the witness’s prior statement is proved to have
been accurately electronically recorded.
IRE 801(d)(1)(A)(2) has no federal counterpart. As is the case
with IRE 801(d)(1)(A)(1), when the requirements of IRE 801(d)
(1)(A)(2) are satised, the out-of-court statements are admissi-
ble substantively as not hearsay, and the trier of fact may give
weight either to the witness’s testimony in court or to the prior
inconsistent statement.
meaning of “event or condition of which declarant had
perSonal knowledge”
In People v. Simpson, 2015 IL 116512, although the
supreme court did not specically refer to IRE 801(d)(1)(A)
(2), by construing the statute upon which the rule is based, the
court provided the denitive statement about the meaning of
“an event or condition of which the declarant had personal
knowledge.” The appeal in Simpson was from the appellate
court’s reversal of the defendant’s jury-trial conviction for
rst-degree murder. At trial, after a witness testied to a loss
of memory both as to what the defendant had told the witness
and as to what the witness had told the police, the State played
for the jury a videotape of the witness informing police of the
incriminating information the defendant had shared with the
witness about the defendant’s role in killing the victim. Because
defense counsel had failed to object to the State’s playing the
videotape, on appeal the defendant claimed ineffective assis-
tance of counsel.
The supreme court began its analysis by determining
whether the playing of the videotape for the jury, under the
circumstances in this case, was error. The court rst acknowl-
edged that the statute it was construing—section 115-10.1 of
the Code of Criminal Procedure (725 ILCS 5/115-10.1—avail-
able at Appendix I), the statute upon which IRE 801(d)(1)(A)
(2) is based—”appears to be susceptible to two reasonable
interpretations and therefore ambiguous.” Simpson, at ¶ 31.
But the court rejected the State’s interpretation that the
“event” in question was the defendant’s verbal admission to
the witness, reasoning that the statute has a settled meaning
because the appellate court had interpreted it numerous times
and had unfailingly “concluded that the prior inconsistent state-
ment is not admissible unless the witness actually perceived
the events that are the subject of the statement or admission.”
Id. at ¶ 32. The court therefore held that the witness’s “out-
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227
ARTICLE VIII. HEARSAY
RULE 801
of-court videotaped statement was not given the imprimatur
of admissibility by section 115-10.1.” In sum, the supreme
court held that “in order for a prior inconsistent statement to be
admissible under section 115-10.1 of the Code [and by exten-
sion, under IRE 801(d)(1)(A)(2)] the witness must have actually
perceived the events that are the subject of the statement, not
merely the statement of those events made by the defendant.”
Id. at ¶ 41. In afrming the appellate court’s reversal of the
defendant’s conviction, the court also held that both prongs of
the Strickland standard for determining ineffective assistance of
counsel had been satised.
diStinction between prior inconSiStent StatementS under oath
and thoSe not under oath
Given the supreme court’s decision in Simpson, the mean-
ing of the previously ambiguous phrase, “an event or condition
of which the declarant had personal knowledge,” is clear. To
be admissible substantively under IRE 801(d)(1)(A)(2), a prior
inconsistent statement of the witness that was not made under
oath must narrate, describe or explain events or conditions
about which the witness had “personal knowledge,” not a
statement narrating what was told to the witness about an event
by another—even if the defendant provided the information to
the witness.
Cases that illustrate situations where that threshold require-
ment was not met include People v. Morgason, 311 Ill. App. 3d
1005 (2000) (though all other requirements of the statute upon
which the rule is based were met, the witness’s recorded state-
ment did not narrate events within her personal knowledge,
but what was told to her by the defendant, and was therefore
improperly admitted); People v. McCarter, 385 Ill. App. 3d
919 (2008) (in a handwritten statement and in a videotaped
statement, some of what the witness stated was told to her and
thus not admissible substantively under the statute (and, by
extension, the codied rule), and some of what she stated was
personally seen by her and thus was substantively admissible);
People v. Lofton, 2015 IL App (2d) 130135 (holding that it was
error to admit witness’s prior inconsistent written statement that
contained overheard statements of defendant about the offense,
and another witness’s prior inconsistent oral statements that
contained defendant’s statements about the offense as well as
statements of others discussing defendant’s statements).
On the other hand, appellate court decisions consistently
hold that previous inconsistent-under-oath statements of a
witness that are based not on the witness’s personal knowledge
but on what the defendant told the witness are substantively
admissible. For examples of such cases that allowed substantive
admissibility of prior inconsistent grand jury testimony—where
the prior inconsistent statements made under oath were based
on what the witness was told by the defendant rather than on
what the witness personally perceived—see People v. Wesley,
2019 IL App (1st) 170442 (holding that 725 ILCS 5/115.10.1(c)
(1) (upon which IRE 801(d)(1)(A)(1) is based) does not require
personal knowledge of the offense, so the admission of the
witnesses’ grand jury testimony about the defendant’s telling
them that he killed the victim, which was inconsistent with
their trial testimony, was proper); People v. Cook, 2018 IL App
(1st) 142134, ¶ 49 (“there is no personal knowledge require-
ment for grand jury testimony under section 115-10.1(c)(1)”);
People v. Donegan, 2012 IL App (1st) 102325, ¶ 37 (same
quote as in Cook); People v. Wilson, 2012 IL App (1st) 101038
(witness’s entire prior inconsistent statement made under
oath to the grand jury was substantively admissible although
it was based in part on what the defendant told the witness;
however, portions of audiotape and handwritten statements of
the witness that narrated what the defendant told the witness
were inadmissible, while portions that narrated what the wit-
ness personally perceived were admissible); People v. Harvey,
366 Ill. App. 3d 910, 921-24 (2006) (same rulings concerning
witnesses’ grand jury testimony and their written statements).
But note that prior-inconsistent-under-oath testimony is
subject to the double hearsay rule. For an example of a case
that holds it was error to admit evidence of a witness’s pri-
or-inconsistent-under-oath testimony about statements told to
her by another about what the defendant had said concerning
the offense, see People v. Lofton, 2015 IL App (2d) 130135,
¶¶ 31-32 (holding that prior grand jury testimony, which was
inconsistent with the witness’s trial testimony, but that related
statements told to the witness about what defendant had told
that third person, was not admissible under IRE 801(d)(1)(A)(1)
COMMENTARY CONTINUED
228RULE 801
ARTICLE VIII. HEARSAY
or (2), as violative of the rule barring double hearsay or the rule
against hearsay within hearsay).
ire 801(d)(1)(a)(2)(a) iSSueS
In People v. Melecio, 2017 IL App (1st) 141434, because
a witness had claimed a loss of memory concerning both the
offense and having provided a written statement about it, the
defendant contended that the State failed to prove that the
pretrial statement had been “written or signed” by the declar-
ant/witness as required by section 115-10.1 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-10.1(c)(2)(A), see
Appendix I), which is substantially identical to IRE 801(d)(1)
(A)(2)(a). Melecio, at ¶ 88. Pointing out that the statute (and,
by implication, the rule) allows the State to prove the witness’s
signing the statement by means other than the witness’s own
acknowledgment, the appellate court rejected the defendant’s
contention and held that the State had “more than met its burden
of proof on this point.” Id. at ¶ 89. The court also rejected the
defendant’s contention that, because of the witness’s claimed
lack of memory about the events surrounding the offense, the
State failed to satisfy the personal knowledge requirement of
the statute (and the rule). The court reasoned that the statement
adequately demonstrated the witness’s personal knowledge of
the events described therein. Id. at ¶ 90.
Next, pointing out that “consistency is measured against a
witness’s trial testimony, not against other admitted statements”
(id. at ¶ 92), the appellate court also rejected the defendant’s
contention that the witness’s grand jury testimony should not
have been admitted based on the fact that the admission of
prior consistent statements is not allowed and the grand jury
testimony was consistent with her pretrial statement. Finally,
reasoning that he had adequate opportunity to cross-exam-
ine the witness, the court rejected the defendant’s argument
concerning the loss of his right to confront the witness who
claimed memory loss.
appellate court advice for admiSSion of “acknowledged”
inconSiStent StatementS under ire 801(d)(1)(a)(2)(b)
The need for a written statement under IRE 801(d)(1)(A)
(2)(a) or for a recording under IRE 801(d)(1)(A)(2)(c) results
in obvious application of those two rules. Where those rules
are invoked, the impeaching party will have either a written
or a recorded statement that differs from the witness’s trial
testimony and that may be used to impeach the witness and to
admit the impeaching statement substantively. The same is true
for a witness who, under IRE 801(d)(1)(A)(2)(b), has previously
“at a trial, hearing, or other proceeding, or in a deposition”
acknowledged having made an inconsistent statement. In that
situation, the impeaching party will have a transcript of the
witness’s acknowledgment of the prior inconsistent statement.
But what about the situation where a witness, who has not pre-
viously acknowledged having made an inconsistent statement
(whether at trial or pretrial), is sought to be impeached by the
party calling the witness and the impeaching party wishes to
have the prior inconsistent statement admitted substantively
under IRE 801(d)(1)(A)(2)(b)?
In People v. Brothers, 2015 IL App (4th) 130644, the appel-
late court, through Justice Robert Steigmann, who has written
extensively about the statutes that give rise to these 801(d)(1)(A)
rules, provides the answer. The appellate court does so without
referencing the codied rule, referring instead to the statute
(725 ILCS 5/115-10.1(c)(2)(B)), which was applied at trial and
upon which IRE 801(d)(1)(A)(2)(b) is based.
In Brothers, the appellate court recommends that, where it
is known that a witness will testify contrary to prior statements,
an “acknowledgment hearing” be held outside the presence of
the jury before the witness takes the stand. At that hearing, the
witness may be questioned about her present testimony and
be confronted with her prior statements, and then she may be
asked whether she made the prior statements. If the witness
acknowledges having made the prior statements, questioning
proceeds in the presence of the jury, where similar questioning
may occur. If the witness then refuses to acknowledge having
made the prior statement before the jury, the questioner will be
able to use the record of the witness’s acknowledgment from
the hearing just concluded. The court further recommends that,
where testimony commences before the jury and it is unknown
whether the witness will testify contrary to prior statements, an
“acknowledgment hearing” be held outside the presence of the
jury as soon as the witness deviates from her prior statement.
That hearing should be conducted in the same manner as the
hearing held before the witness’s testimony, with the same
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229
ARTICLE VIII. HEARSAY
RULE 801
effect. Brothers, at ¶¶ 67-80. The appellate court emphasizes
that, at the “acknowledgment hearing,” the witness should be
questioned about each inconsistent statement that the party
seeks to have acknowledged. Brothers, at ¶ 74. And it points
out that “the acknowledged statement is still not admissible
until the witness testies inconsistently with it in the presence
of the jury once the trial resumes.” Brothers, at ¶ 77 (emphasis
in original).
Later, in People v. Guerrero, 2021 IL App (2d) 190364,
the appellate court relied heavily on Brothers in reversing
and remanding the defendant’s jury conviction for aggravated
battery. The court’s reversal was based on the State’s substantive
admission of statements made to a detective about what a wit-
ness had told him about the offense, where the witness denied
making the statements and testied that he had not seen the
offense and that he had no recollection about it. Noting that
725 ILCS 5/115-10.1(c)(2)(B) (which, again, is the basis of IRE
801(d)(1)(A)(2)(b)), allows the substantive admission of a prior
inconsistent statement where the witness acknowledges having
made the prior statement, the court concluded that, because
the witness had not acknowledged having made the statements
to the detective, the substantive admission of his statements
was improper. As an aside, the alleged victim of the offense
had given police a video recording concerning the offense, so
his similar “turncoat” evidence during trial was unaffected by
section 115-10.1(c)(2)(B), and was properly admitted under
section 115-10.1 (c)(2)(C) of the Code of Criminal Procedure of
1963, which is the basis for IRE 801(d)(1)(A)(2)(c).
Note that the discussion above concerns the substantive
admission of a prior inconsistent statement under IRE 801(d)(1)
(A)(2)(b). But prior inconsistent statements—even those that are
not written or recorded or acknowledged by a witness—may be
used solely for impeachment purposes, with due regard for the
specic prohibition in IRE 607 that “the credibility of a witness
may be attacked by the party calling the witness by means of a
prior inconsistent statement only upon a showing of afrmative
damage.” Note, however, that this IRE 607 restriction does
not apply where the credibility of the witness is attacked by
the party opposing the party who called the witness. And it
does not apply where the witness is impeached by the party
who called the witness and the prior inconsistent statement is
substantively admissible under a rule such as IRE 801(d)(1)(A)
and its subdivisions.
diStinguiShing mere impeachment and admiSSion of evidence for
itS SubStantive weight
People v. Lewis, 2017 IL App (4th) 150124, provides guid-
ance on the distinction between impeaching a witness called
by an opposing party and seeking the substantive admission
of a prior inconsistent statement of a witness called by the
proffering party (usually the State, in calling a witness who is
frequently referred to as a “turncoat witness”). Without referring
to IRE 801(d)(1)(A), the appellate court pointed out in Lewis
that section 115-10-1 of the Code of Criminal Procedure, upon
which the codied Illinois rule is based, plays no role where
mere impeachment is involved (without the application of
IRE 607 principles), and where there is no attempt to have the
inconsistent statement admitted substantively. Like Brothers,
this decision is also noteworthy for Justice Steigmann’s observa-
tions concerning foundational errors in questioning the witness
to be impeached, observations about errors in the testimony
of the police ofcer witness who provided the impeaching
evidence, and advice on how to do it correctly.
effect of ire 801(d)(1) ruleS: impeachment and SubStantive
weight
When their provisions are satised in criminal cases, the
effect of IRE 801(d)(1)(A)(1) and (2) is to provide, not only
impeachment through prior inconsistent statements, but also
substantive weight for such statements—in contrast to the
earlier (pre-statute) holding in People v. Collins, 49 Ill. 2d 179,
194-95 (1971), where the supreme court refused to adopt an
early draft of what was then FRE 801(d)(1) to extend substan-
tive effect to prior inconsistent statements (as well as those
not under oath), while continuing to permit their use only for
impeachment purposes—consistent with their treatment under
common law.
In plain terms, application of each rule means that the trier
of fact is permitted to go beyond solely believing or disbeliev-
ing the witness’s testimony at the relevant proceeding (which
is the consequence of evidence that has only impeachment
value), because the trier of fact may give substantive weight
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230RULE 801
ARTICLE VIII. HEARSAY
even to the witness’s prior inconsistent statement. It thus per-
mits a prosecutor, in some cases where such evidence has been
admitted, to avoid a directed verdict; and, in all cases where
such evidence has been admitted, to argue that evidence
substantively (rather than solely for impeachment purposes) in
encouraging the trier of fact to base its decision upon the prior
inconsistent statement.
ire 607’S limitation on impeaching party’S own witneSS
When prior inconsistent statements are not admitted as
substantive evidence, they still have impeachment value (i.e.,
for the purpose of attacking the credibility of the witness). But
when an Illinois party impeaches its own witness (in either a
civil or a criminal case), that party must be aware of and abide
by the provisions of IRE 607, which prohibits use of a prior
inconsistent statement to impeach one’s own witness, except
where there is “a showing of afrmative damage”—unless the
prior inconsistent statement is substantively admissible.
That limitation does not apply under the federal rule, but
in Illinois a party’s mere disappointment in the testimony of
the witness is an insufcient basis for allowing impeachment.
In Illinois, the failure of one’s own witness to support a party’s
case is an inadequate basis for impeaching that witness; the
witness’s testimony must give positive aid to the opposing
party’s case (again, unless the prior inconsistent statement is
substantively admissible). For a discussion of these principles,
see People v. McCarter, 385 Ill. App. 3d 919 (2008), as well as
the Author’s Commentary on Ill. R. Evid. 607.
determining that StatementS are “inconSiStent”
Cases relevant to whether prior statements of witnesses are
“inconsistent” include: People v. Flores, 128 Ill. 2d 66, 87-88
(1989) (“determination of whether a witness’ prior testimony
is inconsistent with his present testimony is left to the sound
discretion of the trial court”); People v. Sykes, 2012 IL App
(4th) 100769 (trial court has discretion in determining whether
a witness has acknowledged making a prior inconsistent
statement, and is not affected by witness’s attempts to disavow
them); People v. Dominguez, 382 Ill. App. 3d 757, 770 (2008)
(admissibility of prior inconsistent statement is not affected by
witness’s efforts to explain it; resolution of inconsistencies is for
the trier of fact).
In People v. Vannote, 2012 IL App (4th) 100798, a split
decision, the appellate court construed and applied section
115-10.1 of the Code of Criminal Procedure of 1963 (see
Appendix I), the statutory basis for IRE 801(d)(1)(A). In that
case, the victim of the defendant’s alleged offense of aggravated
criminal sexual abuse was 9 years old at the time of the offense,
and 11 years of age at the time of trial. He testied that he
remembered none of the events of the day in question and
did not remember a police interview or what he said during
it. The trial court admitted into evidence both the police-vid-
eotaped interview of the victim, which was played for the jury,
and its transcript. On appeal, the appellate court afrmed the
conviction, holding that the recorded interview was properly
admitted under section 115-10.1. The court relied on cases that
held that prior statements do not need to directly contradict
testimony given at trial to be considered inconsistent, and that
the term “inconsistent” includes evasive answers, silence, or
changes in position. The court concluded that the victim’s
previous statement, recorded the day after the incident, was
inconsistent with his trial testimony and sufcient to constitute
a prior inconsistent recorded statement. The court also held
that there was no confrontation clause violation because the
victim was personally present during trial and was subject to
cross-examination.
The appellate court decision in People v. Kennebrew, 2014
IL App (2d) 121169, provides a thorough analysis concerning
the admissibility of prior out-of-court “testimonial” statements
under section 115-10.1 of the Code of Criminal Procedure
(available at Appendix I), when a witness testies to a lack of
memory concerning relevant facts. At issue in Kennebrew was
the propriety of the admission of out-of-court statements of the
then-nine-year-old victim of sexual offenses: statements made
to her stepmother and her cousin, and a videotaped statement
made to a woman at a children’s center. Because the nine-
year-old testied that she could not recall statements that she
had made about offense-related incidents that had occurred
when she was seven years of age, the focus in the case was
on whether the out-of-court-statements were inconsistent with
the victim’s testimony (to satisfy subdivision (a) of the statute),
whether the victim was subject to cross-examination concern-
COMMENTARY CONTINUED
231
ARTICLE VIII. HEARSAY
RULE 801
COMMENTARY CONTINUED
ing the statements (to satisfy subdivision (b) of the statute), and
whether admission of the statements violated the confrontation
clause pursuant to the requirements of Crawford v. Washington,
541 U.S. 36 (2004).
Relying upon Illinois precedent and decisions of the United
States Supreme Court, the appellate court held that “[a] witness’s
inability at trial to remember or recall events does not automat-
ically render the witness unavailable under the confrontation
clause,” (Kennebrew, at ¶ 35), and that “[d]efendant’s decision
not to cross-examine [the nine-year-old] did not mean that he
did not have the opportunity to cross-examine her, which is
what the confrontation clause guarantees.” (id. at ¶ 40 (empha-
sis in original), see also ¶ 41). Kennebrew is mandatory reading
for anyone addressing issues related to the admission of out-
of-court statements of a forgetful or uncooperative witness, not
only because of its thorough analysis of the issues, but because
of its distinguishing the decision in People v. Learn, 396 Ill.
App. 3d 891 (2009), a decision that the specially concurring
justice in Kennebrew contended was wrongly decided and
should be rejected.
People v. Graves, 2021 IL App (5th) 200104, ¶¶ 33-46, offers
a comprehensive discussion concerning Learn, which involved
the admission of out-of-court statements made to her father and
two police ofcers by a minor who was present to testify, but
offered no evidence concerning the defendant’s sex offense.
Learn, with one justice dissenting, reversed the defendant’s
conviction based on its holding that the testimony of the father
and the police ofcers was improperly admitted. Graves, a
prosecution for sex offenses on a minor, also had testimony by
witnesses who testied about the victim’s statements concern-
ing the offense and also resulted in the victim’s testimony, but
with no evidence from her concerning the offense. Concluding
that Learn was an outlier and providing a compilation of the
numerous appellate court decisions that have ruled contrary
to that case, the court ruled that the Confrontation Clause is
satised by the mere presence of the minor victim as a witness.
In In re Brandon P., 2014 IL 116653, the supreme court
held that a three-year-old child was unavailable as a witness
in a juvenile court proceeding alleging a sexual offense by the
14-year-old respondent. In that case, the supreme court held
that the three-year-old was unavailable to testify because of her
youth and her fear, noting that she “could barely answer the
trial court’s preliminary questions, and then completely froze
when the State attempted to begin its direct examination of her.”
Brandon P., at ¶ 47. The court thus held that the child’s out-of-
court statements should not have been admitted, though it held
that the admission of those statements was harmless beyond a
reasonable doubt. It should be noted, however, that Brandon
P. is a case involving the use of out-of-court statements under
section 115-10 of the Code of Criminal Procedure (725 ILCS
5/115-10; see Appendix U), and not under section 115-10.1
(available at Appendix I), and thus is not relevant to the hearsay
exclusion provided by IRE 801(d)(1). Nevertheless, the case
establishes that a witness may be deemed to be unavailable
in similar situations in an IRE 801(d)(1) setting, and thus not
“subject to cross-examination concerning the statement,” as
required by both section 115-10.1 and IRE 801(d)(1).
2014 amendment of fre 801(d)(1)(b) and itS non-adoption in
illinoiS
Note that FRE 801(d)(1)(B), was amended, effective
December 1, 2014. That federal rule now has two subdivisions:
(1) FRE 801(d)(1)(B)(i) is identical to what was
formerly FRE 801(d)(1)(B), as amended only for
stylistic purposes effective December 1, 2011. That
subdivision, as before, makes a prior consistent
statement of a witness substantively admissible
as not hearsay when offered (in the words of the
December 1, 2011 amended, and now current,
federal rule) “to rebut an express or implied charge
that the declarant recently fabricated it or acted
from a recent improper motive in so testifying.”
(2) FRE 801(d)(1)(B)(ii) is the subdivision that was
added effective December 1, 2014. It broadens
FRE 801(d)(1)(B) by allowing substantive admissi-
bility as not hearsay of prior consistent statements
offered “to rehabilitate the declarant’s credibility
as a witness when attacked on another ground”
(i.e., other than on the basis of recent fabrication
or recent improper inuence or motive).
232RULE 801
ARTICLE VIII. HEARSAY
What was FRE 801(d)(1)(B) and now is FRE 801(d)(1)(B)(i)
has not been adopted in Illinois. That is so because, as stated
supra in the Author’s Commentary on Ill. R. Evid 801(d), under
the heading FRE 801(d)(1)(b) Not Adopted, consistent with
the common law, Illinois allows such statements to be admitted,
but only for rebuttal or rehabilitative purposes, not substantively
(i.e., not as “not hearsay” or as a hearsay exception). See People
v. Harris, 123 Ill. 2d 113 (1988) (to rebut a charge of recent
fabrication, consistent statement made prior to the time when
the witness had a motive to fabricate is admissible); People v.
Walker, 211 Ill. 2d 317, 344 (2004) (prior consistent statement
is not admissible substantively, but only for the limited purpose
of rebutting inferences that the witness is motivated to testify
falsely or that the testimony is of recent fabrication); People
v. Johnson, 2012 IL App (1st) 091730, ¶¶ 57-67 (holding
that, because there was no allegation of recent fabrication or
recent motive to lie, introduction of prior consistent statements
was improper); People v. Denson, 2013 IL App (2d) 110652,
¶¶ 25-29, reversed on other grounds in People v. Denson, 2014
IL 116231 (defendant’s cross-examination concerning witness’s
testimony about offender’s height in deposition taken six years
after the murder was more accurate than her trial testimony at
trial on that subject and allowed State to properly elicit from
witness her statement to police immediately after the offense
about offender’s height, “to address the improper insinuations
raised by the defendant”).
adoption of ire 613(c) and inaction regarding fre 801(d)(1)
(b)(ii)
Note that IRE 613(c), effective on January 1, 2015, was
adopted by the supreme court in order to codify the principles
that are summarized above and that apply in Illinois—as they
are related to FRE 801(d)(1)(B) before its amendment (i.e., as
related to what is now FRE 801(d)(1)(B)(i)). IRE 613(c)’s specic
provisions and its placement as a subdivision of IRE 613, which
addresses prior statements of witnesses, demonstrate that prior
consistent statements—even those admitted to rebut an allega-
tion of recent fabrication or improper inuence or motive—are
not substantively admissible as either a hearsay exclusion or an
exception to the hearsay rule.
Illinois has not adopted nor have Illinois cases addressed
recently added FRE 801(d)(1)(B)(ii). Based on decisions of the
supreme and appellate courts that address what is now FRE
801(d)(1)(B)(i), as well as Illinois’ refusal to codify that rule as
a hearsay exception, it is unlikely that Illinois will adopt that
federal rule, for it grants a much broader range of substantive
admissibility to prior consistent statements.
In sum, regarding prior consistent statements, the com-
mon-law rule continues to apply in Illinois: a prior consistent
statement is admissible for rebuttal or rehabilitative purposes if
it was made before the existence of an alleged motive to testify
falsely or prior to an alleged fabrication; but such a statement is
not substantively admissible and thus does not qualify as “not
hearsay” (as the federal rule provides) or as an exception to the
hearsay rule. Again, the adoption of IRE 613(c) makes those
principles clear.
proper uSe of prior inconSiStent StatementS not admitted
SubStantively; limiting inStructionS
It should be emphasized that “the mere introduction of
contradictory evidence, without more, does not constitute
an implied charge of fabrication or motive to lie.” People v.
Randolph, 2014 IL App (1st) 113624, ¶ 17, quoting People v.
McWhite, 399 Ill. App. 3d 637, 643 (2010). In Randolph, most
of the impeachment of a police ofcer consisted of impeach-
ment by omission, which the appellate court held did not jus-
tify the admission of evidence concerning the ofcer’s report.
Citing People v. Lambert, 288 Ill. App. 3d 450, 461 (1997), the
appellate court stated that “[e]ven in cases where prior consis-
tent statements are properly admitted, such evidence must be
accompanied by a limiting instruction informing the jury that
the evidence should not be considered for its truth, but only to
rebut a charge of recent fabrication.” Randolph, at ¶ 20. The
court also pointed out that “it is improper for the State to refer
to the prior consistent statements as substantive evidence in
closing arguments.” Id.
ire 801(d)(1)(b): prior identification evidence
IRE 801(d)(1)(B), which addresses substantive admissibility
of evidence of prior identication, though bearing a different
number designation from the federal rule, is identical to FRE
801(d)(1)(C) before the latter’s amendment solely for stylistic
COMMENTARY CONTINUED
233
ARTICLE VIII. HEARSAY
RULE 801
COMMENTARY CONTINUED
purposes effective December 1, 2011. The Illinois rule does not
represent a change in Illinois law because section 115-12 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-12),
which is provided in the appendix to this guide at Appendix
J, predates the rule and also gives substantive weight to such
identication evidence. The Illinois rule, which applies only in
criminal cases, is substantively identical to the statute.
In the pre-codication case of People v. Holveck, 141 Ill.
2d 84 (1990), in interpreting section 115-12 of the Code of
Criminal Procedure, the supreme court held that an out-of-
court statement of identication is admissible substantively
where the declarant testies at trial and is subject to cross-ex-
amination, even if the declarant fails to identify the defendant
at trial. The court noted that in its earlier decision in People
v. Rogers, 81 Ill.2d 571 (1980), it had held that, in order to
be admissible, a prior identication had to corroborate an
in-court identication of the defendant, but that case predated
the statute’s enactment. See also People v. Bowen, 298 Ill. App.
3d 829 (1998) (where the out-of-court declarant, who had
previously identied defendant, testied at trial that defendant
was not the offender, holding that “section 115-12 on its face
permits the substantive admission of prior identication state-
ments without regard to whether the witness makes an in-court
identication”).
Also, in the pre-codication case of People v. Lewis, 223 Ill.
2d 393 (2006), again in interpreting section 115-12 (which, it
must be stressed, is substantively identical to IRE 801(d)(1)(B)),
the supreme court held that the statute requires only that the
declarant/witness testify and be subject to cross-examination
on the identication statement. The court held that the witness,
who on direct examination identied the defendant in-court
but offered no direct testimony about her out-of-court identi-
cation of him and was not cross-examined on that subject
by the defendant, was available for and subject to cross-exam-
ination. The court further held that the statute does not require
that the declarant “testify to the out-of-court statement before
a third party may offer testimony on that matter.” Thus, despite
the failure of the declarant/witness to give testimony about the
out-of-court identication of the defendant, it was proper for
a detective to provide testimony concerning her out-of-court
identication. Consistent with its holding, the Lewis court
overruled the contrary holdings in People v. Bradley, 336 Ill.
App. 3d 62 (2002), and People v. Stackhouse, 354 Ill. App.
3d (2004), both of which required a declarant to testify on his
or her out-of-court identication before another witness may
testify about that identication.
In the post-codication case of People v. Whiteld, 2014
IL App (1st) 123135, the appellate court applied Lewis in
holding that the out-of-court declarant’s testimony that he
never identied the defendant as the offender did not prevent
police ofcers from testifying that the declarant had made an
identication. Whiteld also held that testimony by a police
ofcer that three people pointed to the defendant before his
arrest did not constitute hearsay, and the testimony was prop-
erly admitted for the purpose of showing the conduct of police
and the steps in their investigation.
It should be noted that in People v. Tisdel, 201 Ill. 2d 210
(2002), the supreme court held that evidence of an out-of-court
non-identication of a person is substantively admissible, thus
reversing the court’s previous, contrary decision in People v.
Hayes, 139 Ill. 2d 89 (1990).
Also, note that in People v. Temple, 2014 IL App (1st)
111653, a drive-by shooting case in which one person was
murdered and another shot multiple times, the appellate court
rejected the defendant’s hearsay objections in approving the
admission of pre-arrest statements of eye witnesses and police
ofcers recounting the name of the offender, physical and
clothing descriptions of the offender, and descriptions of the car
involved in the offense and its route of travel. In doing so, the
appellate court cited the supreme court decisions in People v.
Shum, 117 Ill. 2d 317, 342 (1987) and People v. Tisdel, 201 Ill.
2d 210, 217 (2002), and the appellate court decision in People
v. Newbill, 374 Ill. App. 3d 847 (2007), to justify its holding
that both section 115-12 and IRE 801(d)(1)(B) allow, not only
evidence of identication, but also testimony concerning the
type of descriptive information provided by the witnesses to the
offense and police ofcers in this case.
People v. Thompson, 2016 IL App (1st) 133648, demon-
strates the distinction between a witness’s testimony concerning
his prior statement of identication, and a witness’s testifying
234RULE 801
ARTICLE VIII. HEARSAY
about a non-testifying witness’s statement that another person
told him of the identity of the offender. In Thompson, the
appellate court approved, as not hearsay under section 115-12
and IRE 801(d)(1)(B), the testimony of a witness to a shooting
that he had identied the names of the offenders to his father.
But the court held that the testimony of a police detective that
the father, who had not testied at trial, told him that his son
had named the defendants as the shooters was inadmissible
hearsay, which in this case the court determined constituted
harmless error.
In People v. Zimmerman, 2018 IL App (4th) 170695, an
interlocutory appeal by the State of trial court rulings, the
appellate court held that the trial court had properly limited the
introduction of identication testimony under both IRE 801(d)
(1)(B) and section 115-12. In that case, the trial court ruled that
a witness’s testimony that she saw the defendant—the former
husband of the victim—in the parking lot of the murdered
victim’s ofce, shortly after the murder was committed in the
victim’s ofce, was admissible. In the hearing on the motion to
suppress statements, the witness testied she recognized the
defendant as the person she had seen many months after her
parking-lot observation, when she saw his photo in a newspa-
per. The witness had informed her husband of both her original
observation and her later recognition of the defendant. She later
told another couple of her observations. In addition to allowing
the witness to make an in-court identication of the defendant,
the trial court ruled that her husband could testify about the
witness’s identication of the defendant based on the news-
paper photo, but the other couple could not testify regarding
the witness’s later conversation. Rejecting the State’s arguments
on appeal that the statements made to the other couple were
wrongfully excluded because they went to the credibility of
the witness’s identication and because there is no limit on
the number of identication witnesses who may testify, the
appellate court held that the testimony of the other couple was
properly barred because it was repetitive and cumulative.
Summary of differenceS between federal and illinoiS verSionS of
rule 801(d)(1)
The following is provided for the purpose of emphasizing, in
summary form, what is stated above concerning the differences
between the federal and Illinois versions of Rule 801(d)(1):
(1) although FRE 801(d)(1)(A) applies both to
civil and criminal cases, IRE 801(d)(1)(A) and its
subdivisions apply only to criminal cases and not
to civil cases;
(2) although FRE 801(d)(1)(B)(i) gives substantive
weight to a prior consistent statement when used to
rebut an allegation of recent fabrication or recent
improper inuence or motive, Illinois does not
have a rule that gives substantive weight to such
statements (i.e., that makes them “not hearsay”
or subject to an exception to the hearsay rule),
but allows such statements only for the purpose
of rehabilitating a witness (see IRE 613(c), which
makes that manifestly clear); also, Illinois has no
counterpart to FRE 801(d)(1)(B)(ii);
(3) although FRE 801(d)(1)(C) gives substantive
weight to identication testimony in both civil
and criminal cases, IRE 801(d)(1)(B) provides sub-
stantive weight to such testimony only in criminal
cases.
For the Committee’s views on these rules, see section (5)
under the “Modernization” discussion in the Committee’s
general commentary on page 3 of this guide.
Author’s Commentary on Ill. R. Evid. 801(d)(2)
IRE 801(d)(2) is identical to FRE 801(d)(2) before its amend-
ment solely for stylistic purposes effective December 1, 2011,
except for (1) the addition of (F) to codify Illinois law, and (2)
the omission of the last sentence of both the pre-amended and
the current federal rule, because it is inconsistent with Illinois
law, which requires the admission of the subdivision (C), (D),
(E), and (F) statements to be based on the relationships specied
independently of the contents of the statement.
Note that the rule had been labeled “Admission by Party-
Opponent.” Effective October 15, 2015, however, the Illinois
Supreme Court altered the title to read “Statement by Party-
Opponent.” That title more accurately describes the rule that
provides substantive admissibility to party-opponent “state-
COMMENTARY CONTINUED
235
ARTICLE VIII. HEARSAY
RULE 801
COMMENTARY CONTINUED
ments,” which are not necessarily “admissions” to anything,
and may not have been against interest when they were made.
Note, too, that the title given to revised FRE 801(d)(2), effective
December 1, 2011, also refers to “Statements.” As opposed to
the federal rule’s “Opposing Party’s Statement,” Illinois retains
the designation of “Party-Opponent,” which has gained com-
mon usage.
Effective October 1, 2019, the current title of IRE 801(d)(2)
resulted in the supreme court’s amendment of Supreme Court
Rule 212(a)(2), which addresses the various uses of discovery
depositions. That subsection, related to the substantive admis-
sion of a deposition of a party-opponent, now refers to “a
former statement, pursuant to Illinois Rule of Evidence 801(d)
(2),” thus deleting the rule’s prior reference to “an admission”
and making specic reference to this evidence rule and all its
subdivisions.
“not hearSay” nature of rule 801(d)(2) Statement
As is the case under IRE 801(d)(1), an out-of-court statement
that satises IRE 801(d)(2) requirements is admitted substan-
tively as “not hearsay” or as a hearsay exclusion, not as an
exception to the hearsay rule. Formerly, such statements were
admissible substantively as exceptions to the hearsay rule. See
In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998).
As a matter of fact, in People v. Denson, 2013 IL App (2d)
110652, reversed on other grounds in People v. Denson, 2014
IL 116231, noting that the defendant cited to cases that contain
holdings that “dene coconspirator statements as an exception
to the traditional denition of hearsay,” the appellate court
pointed out that such holdings have “been radically modied
by the Illinois Rules of Evidence.” The court explained: “Rather
than continue to refer to such statements as an exception to the
hearsay rule, and thus substantively admissible, the Rules have
dened such statements as not hearsay.” People v. Denson,
2013 IL App (2d) 1106562, ¶ 5, reversed on other grounds in
People v. Denson, 2014 IL 116231.
co-conSpirator’S StatementS under rule 801(d)(2)(e)
Some of the issues addressed in Denson concerned whether
certain statements made by co-conspirators to non-conspira-
tors were substantively admissible under the common law and
under IRE 801(d)(2)(E). The appellate court found that some of
the statements qualied as statements in furtherance of the con-
spiracy and thus were substantively admissible, while others
were mere narrative and thus were not substantively admissible
because they were not made in furtherance of the conspiracy.
In People v. Denson, 2014 IL 11623, although disagreeing with
the appellate court’s forfeiture analysis, the supreme court held
that “the appellate court’s analysis of these statements is not
only correct but also factually and legally complete.” People
v. Denson, 2014 IL 11623, ¶ 28. The supreme court therefore
afrmed both the appellate court’s reasoning and conclusions
on these issues.
In People v. Caraga, 2018 IL App (1st) 170123, the appellate
court rejected the defendant’s contention that co-conspirator
statements made outside of his presence or without his knowl-
edge should not have been admitted against him. Pointing out
that a person’s involvement in a conspiracy “may be inferred
from all the surrounding facts and circumstances, including
his own acts and declarations” (id. at ¶ 41), the court held
that, where a person is determined to be a co-conspirator, his
absence from the discussion of other co-conspirators in further-
ance of the conspiracy does not affect admissibility.
In People v. Jaimes, 2019 IL App (1st) 142736, ¶¶ 59-72, the
appellate court held that statements made by members of the
defendant’s gang, which related to the defendant’s killing of a
rival gang member, were made as part of a conspiracy to kill a
rival gang member and in furtherance of the conspiracy, even
though the statements were made after the killing. The appel-
late court reasoned that the statements about the defendant’s
involvement in the killing was part of a broader conspiracy
stemming from the ongoing feud between the rival gangs in
which members of the defendant’s gang desired to continue
harming members of the victim’s gang. Because the conspiracy
was still ongoing, statements by [three members of the gang]
were intended to keep fellow gang members informed of the
continuance of the conspiracy and, thus, in furtherance of the
conspiracy.” Jaimes, at ¶ 62.
relevant deciSionS on StatementS by party-opponent
In a criminal case, the victim of an offense is not a “party.”
See People v. Deskin, 60 Ill. App. 3d 476 (1978) (“In a criminal
case, the party opponent to the defendant is the People of
236RULE 801
ARTICLE VIII. HEARSAY
the State of Illinois. The victim, though also a complainant, is
merely another witness.”).
In People v. Aguilar, 265 Ill. App. 3d 105 (1994), a decision
issued before the codication of Illinois’ evidence rulers and
before the amendment of “admission” to “statement,” the trial
court suppressed statements made by the defendant on the
grounds that the statements were not “admissions” but were
exculpatory. In reversing the trial court’s ruling on the State’s
interlocutory appeal, the appellate court ruled as follows:
“The hearsay rule is not a basis for objection
when the defendant’s own statements are offered
against the defendant; in such a case the defen-
dant’s statements are termed “admissions.” Any
statement by an accused person, unless excluded
by the privilege against self-incrimination or other
exclusionary rules, may be used against him as an
admission. Illinois courts have relied on Federal
Rule of Evidence 801(d)(2) in nding that a defen-
dant’s admissions are not excludable as hearsay.”
Aguilar, 265 Ill. App. 3d at 110 (citations omitted).
In People v. Schlott, 2015 IL App (3d) 130725, the trial court
suppressed a portion of the defendant’s 911 call on the basis
that what the defendant said during that call violated the hold-
ing in Crawford v. Washington, 541 U.S. 36 (2004), relating to
“testimonial” statements. On the State’s interlocutory appeal,
the appellate court pointed out that Crawford’s focus on testi-
monial and nontestimonial hearsay “was at all times concerned
with hearsay.” Schlott, at ¶ 33 (emphasis in original). Holding
that the defendant’s statements were not hearsay, the court
held that “[a]dmissible nonhearsay does not implicate the
confrontation clause.” Id. Quoting the language of IRE 801(d)
(2)(A), the court held that “[t]he statements made by defendant
and recorded on the 911 tape are admissions, and are plainly
considered nonhearsay under Illinois law.” Schlott, at ¶ 35.
In In re Matter of Chance H., 2019 IL App (1st) 180053,
after an adjudicatory hearing, the trial court determined that a
number of children were neglected children due to an injurious
environment. On appeal, the mother of the children contended
that the trial court erred in its admission of and reliance on the
allegedly hearsay testimony of two caseworkers who testied to
what the mother had self-reported to them regarding her mental
health. Noting that statements of a party-opponent “constitute
substantive evidence subject to consideration by the trier of
fact,” the appellate court held “that the statements testied to
by the caseworkers were properly admitted as statements by a
party-opponent pursuant to Ill. R. Evid. 801(d)(2)(A) and were
not inadmissible hearsay.” Chance H., at ¶¶ 49-50.
In Perez v. St. Alexius Medical Center, 2020 IL App (1st)
181887, a wrongful death and survival action based on medi-
cal malpractice, the appellate court held that the trial court had
improperly barred the plaintiff from questioning the defendant
based on the defendant’s expert witness’s disclosure in his
interrogatory pursuant to Ill. S. Ct. Rule 213(f)(3), a disclosure
that was signed by the defendant’s attorney and which was
inconsistent with the defendant’s defense. In addition to the
appellate court’s reliance on Rule 213(f)(3) and other supreme
court rules, the court relied on IRE 801(d)(2)(A), pointing out
that the rule “does not distinguish between ‘the party, the par-
ty’s current employee, or the party’s retained expert.’” Perez,
at ¶ 68. The dissenting justice did not object to the majority’s
general principles on this issue; rather, she dissented based on
the plaintiff’s failure to make an offer of proof, as well as the
fact that the jury had heard the content of the Rule 213(f)(3)
disclosure at various times during the trial.
In People v. Sanders, 2021 IL App (5th) 180339, a prosecu-
tion for rst degree murder, the State was allowed to impeach
the defendant through cross-examination, in his initial trial,
during his testimony by questioning him about admissions of
guilt he made while being interrogated by police. This form of
impeachment was proper under United States Supreme Court
decisions, despite the trial court’s prior ruling that police had
obtained the incriminating statements from the defendant in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). The
trial in which this occurred ended in a hung jury. During the
subsequent retrial, in which the defendant did not testify, the
trial court allowed the State to admit the transcript of the defen-
dant’s testimony in the former trial based on the non-hearsay
“statement by party-opponent” rule provided by IRE 801(d)(2).
The defendant was convicted. In the appeal that followed, the
appellate court rejected the State’s contention that the testimony
COMMENTARY CONTINUED
237
ARTICLE VIII. HEARSAY
RULE 802
Rule 802. e Rule Against Hearsay
Hearsay is not admissible unless any of the following
provides otherwise:
· a federal statute;
· these rules; or
· other rules prescribed by the Supreme Court.
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these
rules, by other rules prescribed by the Supreme Court,
or by statute as provided in Rule 101.
Author’s Commentary on Ill. R. Evid. 802
IRE 802 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for language specic to Illinois. This rule provides
the specic authority for the inadmissibility of hearsay—except
when a hearsay exception or exclusion applies.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY CONTINUED
of the defendant was justied by this evidence rule, holding
that the trial court erred in allowing the State to introduce at
trial, as substantive evidence, the transcript of the defendant’s
prior trial impeachment testimony, which had been excluded
as substantive evidence under Miranda. The conviction was
reversed and the case was remanded for retrial.
tacit or implied admiSSion
A tacit or implied admission by silence by a defendant in a
criminal case is an example of an 801(d)(2)(B) statement. The
elements of such an admission are: (1) the defendant heard the
incriminating statement, (2) the defendant had an opportunity
to reply and remained silent, and (3) the incriminating state-
ment was such that the natural reaction of an innocent person
would be to deny it. People v. Soto, 342 Ill. App. 3d 1005,
1013 (2003), citing People v. Goswami, 237 Ill. App. 3d 532,
536 (1992), which in turn cited People v. McCain, 29 Ill. 2d
132, 135 (1963). For an appellate court decision addressing
the elements of admission by silence in the context of a will
contest case, see DeMarzo v. Harris, 2015 IL App (1st) 141766,
¶¶ 24-26 (absent evidence that defendant-attorney heard state-
ment by testatrix that he had drafted her will, which left a good
portion of her estate to him, there was no admission by silence
based upon his failure to respond).
ire 801(d)(2)(d): Scope of employment approach
Adoption of IRE 801(d)(2)(D) resolves the split in the Illinois
Appellate Court about which approach should apply to make
an agent’s statement admissible against the principal: the
traditional agency approach (which includes the requirement
that the agent be given authority to speak) or the scope of
employment approach (which is consistent with the federal
rule and does not require specic authority to speak). See Pavlik
v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060 (2001), for a dis-
cussion concerning the split and its preference for the federal
rule. The adoption of the rule, which includes subdivision (D)
without the requirement of authority to speak, makes it clear
that authorization is unnecessary. See also section (6) under
the “Modernization” discussion in the Committee’s general
commentary on page 3 of this guide.
238RULE 803
ARTICLE VIII. HEARSAY
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as
a Witness
e following are not excluded by the rule against
hearsay, regardless of whether the declarant is available
as a witness:
(1) Present Sense Impression. A statement describ-
ing or explaining an event or condition, made while or
immediately after the declarant perceived it.
Rule 803. Hearsay Exceptions; Availability of
Declarant Immaterial
e following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
[IRE 803(1) is Reserved – Illinois has not adopted
FRE 803(1) Present Sense Impression exception to the
hearsay rule]
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 803(1)
The present sense impression exception to the hearsay rule,
which FRE 803(1) provides, has not been adopted in Illinois.
For that reason, there is no IRE 803(1); that rule designation has
been reserved.
In Estate of Parks v. O’Young, 289 Ill. App. 3d 976 (1997), the
appellate court noted that it was unaware of any Illinois case
that applied the present sense impression exception; see also
People v. Stack, 311 Ill. App. 3d 162 (1999) (citing O’Young).
See also People v. Leonard, 83 Ill. 2d 411 (1980) (noting that
the State urged the correctness of the admission of the contro-
verted statement by the deceased as a present sense impression
but, without specically rejecting the State’s claim, holding
that “absent some evidence of the existence of an occurrence
sufciently startling to produce a spontaneous and unreecting
statement, the testimony relating the out-of-court statement
should be excluded,” and ultimately nding that the statement
was properly admitted as a spontaneous declaration); People
v. Smith, 127 Ill. App. 3d 626 (1984) (though not using the
phrase “present sense impression,” holding that “[t]here is no
exception to the hearsay rule which allows admission of ‘a dec-
laration of a witness to the event as to what he saw happen,’”
but admitting part of a since-deceased person’s statement as a
spontaneous declaration).
For those seeking added justication for Illinois’ non-adop-
tion of the present sense impression exception to the hearsay
rule, see Judge Richard Posner’s concurrence in United States
v. Boyce, 742 F.3d 792 (7th Cir. 2014).
Despite the above-described authority justifying the
non-adoption of this hearsay exception, note that in People v.
Alsup, 373 Ill. App. 3d 745 (2007), the appellate court relied
on the present sense impression exception, as well as the busi-
ness records and the excited utterance exceptions, to approve
admission of ISPERN radio communications during a police
chase of a stolen vehicle that resulted in a homicide. In People
v. Abram, 2016 IL App (1st) 132785, the trial court admitted
a tape of ofcers pursuing a car from which objects, later
determined to be cocaine, were thrown, Noting the absence
of a present sense impression exception in Illinois’ codied
rules, and considering and rejecting the holding in Alsup, the
appellate court concluded that the tape’s admission could not
be justied by the present sense impression exception to the
hearsay rule. But the court went on to consider the applicability
of the excited utterance exception, and held that the tape was
admissible under that exception. The court further reasoned
that, even if that exception did not apply, there was no resulting
prejudice “as no information was provided in the recording
that was not also established through the live testimony” of the
ofcers. Abram, at ¶ 76.
In addition to the excited utterance exception, for an
alternative (non-substantive) method for introducing such
evidence, see the Illinois Supreme Court decision in People v.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
239
ARTICLE VIII. HEARSAY
RULE 803
Banks, 237 Ill. 2d 154 (2010) (approving admission of a series
of ash messages over police radios, holding that “admission of
an out-of-court statement that is not offered to prove the truth
of the matter asserted but rather to explain the investigatory
procedure followed in a case is proper”).
See also People v. Lacey, 93 Ill. App. 2d 430 (1968), a deci-
sion not related to the present sense exception to the hearsay
rule, where, in upholding the admission of a sheriff’s radio logs,
the appellate court stated, “As an exception to the hearsay rule,
it has been repeatedly held that records kept by a public ofcer,
dealing with his ofcial activities and either required by statute
or reasonably necessary for the performance of the duties of the
ofce, are admissible to prove the matters recorded.”
COMMENTARY CONTINUED
(2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant
was under the stress of excitement that it caused.
(2) Excited Utterance. A statement relating to a
startling event or condition made while the declarant
was under the stress of excitement caused by the event
or condition.
Author’s Commentary on Ill. R. Evid. 803(2)
IRE 803(2) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. This exception to the hearsay rule, labeled as the “excited
utterance” exception, generally has been referred to in Illinois
cases as the “spontaneous declaration” exception.
rule’S common-law rootS
For case interpretation, see People v. Sutton, 233 Ill. 2d 89,
107 (2009) (“there must be an occurrence sufciently startling
to produce a spontaneous and unreecting statement, there
must be an absence of time for the declarant to fabricate the
statement, and the statement must relate to the circumstances
of the occurrence”). See also People v. Williams, 193 Ill. 2d
306, 352 (2000); People v. Damen, 28 Ill. 2d 464 (1963); and
People v. Burton, 399 Ill. App. 3d 809 (2010).
In People v. Stiff, 391 Ill. App. 3d 494 (2009), in approving
the admission of statements made by the victim who had run
a signicant distance after being set are, the appellate court
cited other decisions holding that time since and distance from
an incident are not dispositive in determining whether “it is
reasonable to believe that the declarant acted without thought,
or whether there existed the possibility that the declarant has
deliberated and made a false statement.”
See also People v. Connolly, 406 Ill. App. 3d 1022 (2011),
where, in reviewing a conviction for domestic battery, the
appellate court held that (1) the out-of-court incriminating
statements of the defendant’s wife qualied as excited utter-
ances and sufciently justied the conviction, despite the wife’s
contrary testimony at trial, and (2) the wife’s excited utterance
was not a “testimonial statement” and thus did not violate the
confrontation clause as interpreted by Crawford v. Washington,
541 U.S. 36 (2004).
Sampling of rule’S poSt-codification application
For a case applying the rule’s hearsay exception, see People
v. Herring, 2018 IL App (1st) 152067, ¶¶ 68-69 (holding that
tape of a 911 call by the mother of a homicide victim, after
seeing her son’s body on the ground, was sufciently startling
to justify admission under the hearsay exception).
In People v. Perkins, 2018 IL App (1st) 133981, the appellate
court determined that two of three statements made by the
victim concerning the defendant’s shooting her in the face
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
240RULE 803
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
qualied as excited-utterance exceptions to the hearsay rule.
Nevertheless, the court held that admission of the statements
violated the defendant’s sixth amendment right to confronta-
tion. The court reasoned that the victim had been taken from
the scene of the shooting and she had been in the hospital for
about one and a half hour before making the rst statement,
and that the defendant had already been taken into custody
when she made the statement. The court therefore concluded
that “the primary purpose in questioning [the victim] was not
to determine if there was an ongoing emergency, since they
already had defendant in custody for the shooting, but to estab-
lish or prove past events to identify or convict the perpetrator.”
Perkins, at ¶ 78. The court therefore held that the statements
of the victim, who died nine days later, were testimonial and
therefore violated the defendant’s sixth amendment rights. Id.
at ¶¶ 75-78. The appellate court, however, ultimately allowed
admissibility of all three statements of the victim under the
forfeiture-by-wrongdoing exception to the hearsay rule. Id. at
¶¶ 81-88.
In People v. Gabriel Feliciano, 2020 IL App (1st) 171142, in
a jury trial for rst degree murder, home invasion, and robbery,
the trial court admitted numerous statements of the 94-year-old
victim that “Gabriel did this to me” or that “Gabriel” had beaten
him up. The victim was found on his bedroom oor trapped
under a tall dresser on top of him, brutally beaten, with injuries
that indicated they had occurred one or two days before. He
died in the hospital 41 days after his removal from his home.
On appeal, defendant argued that the victim’s statements “were
inadmissible because the startling occurrence of being found
had passed by the time [the victim] made the statements.” Id. at
¶ 85. He also contended that the statements were inadmissible
“statements to [a police ofcer] and the medical personnel in
particular were inadmissible because they were testimonial
statements, as they were made in response to an interrogation
intended to collect information for a future prosecution.” Id.
In rst responding to defendant’s confrontation-clause argu-
ment concerning the admissibility of the victim’s statements to
a police ofcer and to medical personnel, the appellate court
discussed the victim’s numerous statements, noting that the vic-
tim was facing an ongoing emergency, that his statements were
necessary to resolve the present emergency, that his statements
were made frantically, and that he “was not strictly referring to
past events, as his statement that he was beaten by someone
was necessary to describe his present condition, which further
provided context necessary to receive assistance.” Id. at ¶ 93.
The court noted that defendant had not been apprehended
when the statements were made, and cited People v. Sutton,
233 Ill.2d 89, 115-16 (1989), in concluding that the victim’s
“statements were not made to provide information for a future
prosecution and therefore were not testimonial and do not
implicate the confrontation clause.” Feliciano, at ¶ 98.
In response to defendant’s contention that the spontaneous
declaration exception to the hearsay rule was inapplicable
because there was too much time between the startling events
that caused the victim’s injuries and his one-to-two-day state-
ments to police and medical personnel, the appellate court
relied on People v. Gacho, 122 Ill. 2d 221, where there was
a 6½ hour delay in naming the offender by the victim of a
shooting who was found in the trunk of a car with the dead
body of another shooting victim. The appellate court equated
the victim’s statement in this case to that of the victim in Gacho,
reasoning that “during this extremely painful and traumatic
period of time, the victim likely could not have fabricated
a story regarding who put him in that situation.” Feliciano,
at ¶ 107. Finally, in response to defendant’s contention that
statements of the victim were made in response to questions,
the appellate court cited the holding in People v. Williams,
193 Ill. 2d 306, 352 (2000), that “the fact that a statement was
made in response to a question does not necessarily destroy
spontaneity.” Feliciano, at ¶ 101.
For an example of a decision where the hearsay exception
did not apply, see People v. Denis, 2018 IL App (1st) 151892,
¶¶ 71-75 (holding that statements by the victim of sexual
assaults when she was seven-years old, made to her mother
during an argument more than 10 years after the offenses,
were improperly admitted because the excitement of the
occurrences no longer predominated and thus did not meet the
requirements of the excited utterance exception).
241
ARTICLE VIII. HEARSAY
RULE 803
COMMENTARY CONTINUED
effect of queStioning on Spontaneity
In People v. Williams, 193 Ill. 2d 306, 353 (2000), the
supreme court stated: “Although a statement made in response
to persistent interrogation might not be admitted under
the spontaneous declaration exception (see, e.g., People v.
Sommerville, 193 Ill.App.3d 161, 174-75 (1990)), the fact
that a statement was made in response to a question does not
necessarily destroy spontaneity (see, e.g., People v. Smith, 152
Ill.2d 229, 260 (1992)).” In Smith, the supreme court stated:
“The proper question is whether the statement was made while
the excitement of the event predominated.” Smith, 152 Ill.2d
at 260.
In People v. Morales, 2021 IL App (2d) 190408, applying
the excited utterance exception, the appellate court upheld the
admission of 33 seconds of a domestic violence victim’s call
to a 911 operator, over the defendant’s objection based on the
direct result of questioning by the 911 operator. Citing other
decisions where the exception applied despite questioning
(including Williams and Smith), the appellate court held that
the victim remained under the inuence of the startling event
when she made the call, and the operator’s questioning did not
destroy spontaneity.
requirement that declarant have perSonal knowledge of the
matter
Note that “there is a caveat to the spontaneous declaration
exception of the hearsay rule that the declarant must have had
an opportunity to observe personally the matter of which he
speaks.” People v. Hill, 60 Ill. App. 2d 239, 248 (1965). For a
recent application of that principle, see People v. Garner, 2016
IL App (1st) 141583, ¶¶ 47-52 (nding error in admission as
excited utterances statements of mother that implicated her
daughter in killing her granddaughter (“she killed my baby,” “I
can’t believe she would do this,” and “I can’t believe she did
this”), where mother had not personally witnessed the acts that
constituted the murder offense, but holding that the admission
of the evidence was harmless error).
conSequence of “availability of declarant immaterial”
As it relates to this rule and all the other 803 rules, note
the signicance of the immateriality of the availability of the
out-of-court declarant. That immateriality means that if the out-
of-court declarant is on the witness stand, he or she may testify
to the out-of-court statement. It also means that whether or not
the out-of-court declarant testies, a person who heard the
statement may testify about the declarant’s Rule 803 statement.
242RULE 803
ARTICLE VIII. HEARSAY
COMMENTARY
Author’s Commentary on Ill. R. Evid. 803(3)
The combination of IRE 803(3) and subdivision (A) is
identical to FRE 803(3) before the latter’s amendment solely
for stylistic purposes effective December 1, 2011. IRE 803(3)
(B) (concerning the non-admissibility of one declarant’s state
of mind, emotion, sensation, or physical condition to prove
another declarant’s state of mind, emotion, sensation, or phys-
ical condition) is added to the Illinois rule merely to clarify
what is implicit in the federal rule and explicit in Illinois. For
the substantive changes that this rule represents in Illinois law,
see the rst sentence in bold under the nal heading of this
commentary, entitled “Substantive Changes in Illinois Law,”
and the discussion that follows.
Shepard v. united StateS: excluSion of StatementS of memory or
belief aS related to ire 803(3)(a)
The exclusion from the hearsay exception of “a statement
of memory or belief to prove the fact remembered or believed”
in IRE 803(3)(A) is best illustrated by Shepard v. United States,
290 U.S. 96 (1933). In that case, the defendant Dr. Shepard,
a major in the medical corps of the army, was convicted of
murdering his wife by poisoning her with bichloride of mercury
contained in a bottle of whiskey from which she had drunk.
Evidence was presented at trial that, while she was ill in bed
two days after collapsing, the victim asked her nurse to retrieve
a whiskey bottle from the defendant’s closet. When the bottle
was produced, she told the nurse that it was the liquor she had
drunk before collapsing; she asked if there was enough left to
test for the presence of poison; she said the smell and taste
were strange; and then she said, “Dr. Shepard has poisoned
me.” She died approximately three weeks later. After conclud-
ing that the victim’s statements were not admissible under the
dying declaration exception to the hearsay rule, the issue for
Justice Cardozo, writing for a unanimous Supreme Court, was
whether the statements were properly admitted under the state-
of-mind exception. The answer was “no,” explained in these
terms, relevant to the IRE 803(3)(A) exclusion:
“Declarations of intention, casting light upon
the future, have been sharply distinguished from
declarations of memory, pointing backwards to
the past. There would be an end, or nearly that,
(3) en-Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then-ex-
isting state of mind (such as motive, intent, or plan)
or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not includ-
ing a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity
or terms of the declarant’s will.
(3) en Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then existing
state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including:
(A) a statement of memory or belief to prove
the fact remembered or believed unless it relates to
the execution, revocation, identication, or terms of
declarant’s will; or
(B) a statement of declarant’s then existing state
of mind, emotion, sensation, or physical condition
to prove the state of mind, emotion, sensation, or
physical condition of another declarant at that time
or at any other time when such state of the other
declarant is an issue in the action.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
243
ARTICLE VIII. HEARSAY
RULE 803
to the rule against hearsay if the distinction were
ignored.
“The testimony now questioned faced backward
and not forward. This at least it did in its most obvi-
ous implications. What is even more important, it
spoke to a past act, and, more than that, to an act
by some one not the speaker.” Shepard, 290 U.S.
at 106.
relevant caSeS on ire 803(3)(b)
For cases relevant to IRE 803(3)(B), see e.g., People v. Lawler,
142 Ill. 2d 548, 559 (1991) (evidence of complainant’s state-
ment during a telephone conversation with her father—that
defendant had a gun and that she could not get away—was
improperly admitted where State did not use the statement solely
as evidence of complainant’s state of mind regarding whether
she consented to intercourse, and State’s closing argument
showed that statement was used as substantive evidence of its
contents); People v. Cloutier, 178 Ill. 2d 141 (1997) (statements
of declarants that defendant displayed victim’s body to them in
effort to force them to submit to his wishes were inadmissible
on issue of whether defendant’s sexual conduct with victim was
achieved by use of force—defendant was not the declarant and
the declarants’ statements had no bearing on defendants’ state
of mind when he killed victim). As the supreme court pointed
out in Cloutier,
“Under [the state of mind] exception, an out-of-
court statement of a declarant is admissible when
that statement tends to show the declarant’s state
of mind at the time of utterance. [Citation to
Lawler.] In order to be admissible, the declarant’s
state of mind must be relevant to a material issue
in the case.” Cloutier, 178 Ill. 2d at 155 (emphasis
added).
For an appellate court case applying IRE 803(3)(B) in hold-
ing that a statement was not admissible under this state-of-mind
exception to the hearsay rule, see People v. Denson, 2013 IL
App (2d) 110652, judgment reversed on other grounds in
People v. Denson, 2014 IL 116231, (holding that the statement
was improperly admitted as shown by the General Commentary
of the Committee (see the last sentence of the Commentary on
IRE 803 on page 6 of this guide):
“Consistent with prior Illinois law, Rule 803(3)(B)
provides that the hearsay exception for admissi-
bility of a statement of intent as tending to prove
the doing of the act intended applies only to the
statements of intent by a declarant to prove her
future conduct, not the future conduct of another
person.”) People v. Denson, 2013 IL App (2d)
110652, ¶ 23 (emphasis added by the court).
For a pre-codication case that cites some of the no longer
applicable common-law principles, see People v. Munoz,
398 Ill. App. 3d 455 (2010) (in defendant’s trial for murder,
deceased victim’s statements that defendant “was jealous of
her” and “wanted to know where she was and what she was
doing all the time” were not admissible). Though relying on
pre-codication common-law principles, Munoz and cases it
cites (such as Lawler and Cloutier) are relevant to IRE 803(3)
(B) for distinguishing statements showing the state of mind of
the declarant (which are admissible) as opposed to the state of
mind of another person (which are not admissible).
StatementS admiSSible to prove motive
People v. Hill, 2014 IL App (2d) 120506, an appellate court
decision following a murder conviction, discusses the rule,
other cases that construe it, the distinction between subdivi-
sions (A) and (B), and the standard of review for the admis-
sibility of this state-of-mind exception to the hearsay rule. In
Hill, the appellate court approved admission of Post-It notes
and another note, all written by the deceased, in which she
discussed the defendant’s statements and her intent to end her
relationship with him. In rejecting the defendant’s contentions
that the notes were improperly admitted to establish the truth
of what the victim had written and to improperly establish the
defendant’s state of mind as a motive for murdering the victim,
the appellate court reasoned as follows:
“[T]he notes found in the townhouse were relevant
to demonstrate decedent’s state of mind, and the
additional circumstantial evidence presented at
trial was sufcient to establish a basis from which
a reasonable jury could infer that defendant read
COMMENTARY CONTINUED
244RULE 803
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
the notes, making the disputed evidence relevant
to suggest defendant’s motive. Thus, the contents
of the handwritten notes were not hearsay, as
they were not offered for the truth of the matter
asserted, but were admitted for the effect that they
had on defendant.” Hill, at ¶ 58.
StatementS admiSSible to Show decedent’S State of mind
In Dohrmann v. Swaney, 2014 IL App (1st) 131524, the
appellate court did not refer to IRE 803(3), but instead applied
common-law principles for events that occurred before the
adoption of the codied evidence rules. Nevertheless, under
either analysis, the result would not have differed. In that case,
the plaintiff and Mrs. Rogers agreed in writing for Mrs. Rogers to
transfer approximately $5.5 million in cash and property upon
Mrs. Rogers’ death, in exchange for the plaintiff’s agreement to
have his two young sons incorporate the Rogers name into their
names to help the Rogers name continue after Mrs. Rogers’
death. The addition of “Rogers” to the sons’ middle names was
effected. On appeal from the circuit court’s nding that the con-
tract was not enforceable and its grant of summary judgment
in favor of the estate of Mrs. Rogers, the plaintiff contended
that it was error for the circuit court to consider Mrs. Rogers’
statements to third parties regarding her suspicions that he “was
after” her property. In afrming the grant of summary judgment
and in reasoning that the statements were not admitted to prove
the truth of what she believed, the appellate court held that the
statements were admissible as relevant to Mrs. Rogers’ state of
mind to show her reluctance to enter the agreement with the
plaintiff.
SubStantive changeS in illinoiS law
Note that, though the Illinois rule is substantively identical
to its federal counterpart, the placement of it as an 803 rule
(where the availability of the declarant as a witness is imma‑
terial) represents a substantive change in Illinois law. That is
so because Illinois decisions had required the unavailability of
the out-of-court declarant in order to trigger the rule’s appli-
cation, which would have required its placement as an 804
rule. Note, too, that this codication alters the requirement
in previous cases that there be a reasonable probability that
the statement was truthful. See the thorough discussion of this
issue in section (b) under the “Recommendations” discussion
in the Committee’s general commentary on the bottom of page
5 through page 6 of this guide.
An example of a pre-codication decision that required
the unavailability of the declarant to testify and a reasonable
probability that the proffered statements are truthful is People
v. Caffey, 205 Ill. 2d 52 (2001). Again, the requirements of the
declarant’s unavailability and a reasonable likelihood of the
statement’s truthfulness no longer are relevant to the applica-
tion of this rule.
Thus, in the post-codication decision of People v. Herring,
2018 IL App (1st) 152067, ¶ 64, the appellate court erred in
failing to apply IRE 803(3) and in wrongly citing Caffey in
approving the admission of the murder victim’s statement,
before he was killed, that his car had been broken into and
he was going to await the arrival of police. The court’s error
was in approving the “state of mind” exception to the hearsay
rule based on its reasoning that the deceased declarant was
unavailable to testify and there was a reasonable probability
that the hearsay statement was truthful. Without applying those
unnecessary requirements, however, application of IRE 803(3)
would have led to the identical result.
245
ARTICLE VIII. HEARSAY
RULE 803
(4) Statement Made for Medical Diagnosis or
Treatment. A statement that:
(A) is made for—and is reasonably pertinent
to—medical diagnosis or treatment; and
(B) describes medical history; past or present
symptoms or sensations; their inception; or their
general cause.
(4) Statements for Purposes of Medical Diagnosis
or Treatment.
(A) Statements made for purposes of medical
treatment, or medical diagnosis in contemplation
of treatment, and describing medical history, or past
or present symptoms, pain, or sensations, or the
inception or general character of the cause or exter-
nal source thereof insofar as reasonably pertinent to
diagnosis or treatment but, subject to Rule 703, not
including statements made to a health care provider
consulted solely for the purpose of preparing for
litigation or obtaining testimony for trial, or
(B) in a prosecution for violation of sections
11-1.20, 11-1.30, 11-1.40, 11-1.50, or 11-1.60 of
the Criminal Code of 1961 (720 ILCS 5/11-1.20,
11-1.30, 11-1.40, 11-1.50, 11-1.60), or for a viola-
tion of the Article 12 statutes in the Criminal Code
of 1961 that previously dened the same oenses,
statements made by the victim to medical personnel
for purposes of medical diagnoses or treatment
including descriptions of the cause of symptom, pain
or sensations, or the inception or general character
of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Author’s Commentary on Ill. R. Evid. 803(4)
803(4)(a)
Insofar as it applies to statements made for treatment pur-
poses, IRE 803(4)(A) is identical to FRE 803(4), before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. There is a substantive difference, however, in that the
federal rule does not distinguish between statements made
for medical treatment and for medical diagnosis for treatment
purposes on the one hand, and statements made for medical
diagnosis solely for trial purposes. Consistent with Illinois com-
mon law, the Illinois rule does not allow, as an exception to the
hearsay rule, statements made for medical diagnosis solely to
prepare for litigation or to obtain testimony for trial.
Note, however, that the Illinois rule allows, subject to IRE
703, the non-substantive admission of statements made to a
health care provider, who is “consulted solely for the purpose of
preparing for litigation or obtaining testimony for trial.” In other
words, statements made to a health care provider, consulted
solely to prepare for trial or to obtain testimony for trial, are
admissible at trial (subject to IRE 403) for the non-substantive
purpose of disclosing facts the expert reasonably relied upon
in reaching her opinion. For more on this subject, see People
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
246RULE 803
ARTICLE VIII. HEARSAY
v. Anderson, 113 Ill. 2d 1 (1986), discussed in the Author’s
Commentary on Ill. R. Evid. 703.
common-law baSiS for ire 803(4)(a)
In People v. Gant, 58 Ill. 2d 178 (1974), before the adoption
of the Federal Rules of Evidence, the supreme court held that
statements made by a patient to a doctor for treatment purposes
concerning the cause or the external source of the condition to
be treated are substantively admissible.
offenSeS within the StatuteS liSted in ire 803(4)(b)
Though the current version of the federal rule is substan-
tively identical to the pre-amended rule, the pre-amended
version of the federal rule did not have a subdivision (B).
The pre-amended version of the federal rule simply had no
subdivisions, combining what is now subdivisions (A) and (B)
into a single FRE 803(4). Illinois’ subdivision (B), in IRE 803(4)
(B), however, differs from the federal pre-amended version
and, specically, what is now FRE 803(4)(B) and which has no
federal counterpart.
The Illinois rule is a near-verbatim reproduction of section
115-13 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115-13; provided at Appendix K). Both section 115-13 and
IRE 803(4)(B) provide for the admission, as an exception to
the hearsay rule, of statements made to medical personnel by
a victim of the sex offenses provided in the section numbers
that are listed in IRE 803(4)(B), concerning the source of the
victim’s symptoms for medical diagnosis or treatment—without
regard for the distinction between “diagnosis” and “treatment”
that is present in IRE 803(4)(A). The result is broader substantive
admissibility of a victim’s statements related to the sex offenses
described in the statutes provided in subdivision (B).
Another distinction to be noted within the Illinois rule itself
is that IRE 803(4)(A) is not limited to statements made directly
to health care providers (thus allowing admissibility even for
statements made to laypersons—if they are for the purpose of
treatment); while IRE 803(4)(B) is limited to statements made to
“medical personnel.” Of course, in many instances the hearsay
exceptions provided by IRE 803(2) (excited utterance) or IRE
803(3) (then existing mental, emotional, or physical condition)
may be used to gain admission, depending on relevant factual
circumstances.
Note that the original version of IRE 803(4)(B) was amended
by the supreme court, effective April 26, 2012. The rule amend-
ment was necessary because, in Public Act 96-1551, effective
July 1, 2011, the General Assembly amended section 115-13
by adding section numbers (while retaining section numbers
that had been repealed), and it also altered the section numbers
of numerous statutes relating to sex offenses in the Criminal
Code of 1961 (now, the Criminal Code of 2012). As relevant
here, Public Act 96-1551 moved sex offenses from Article 12
(which addresses “Bodily Harm” offenses) to Article 11 (which
addresses “Sex Offenses”), thus renumbering the statutes listed
in the original version of IRE 803(4)(B).
Specically, the statute that addresses the offense of criminal
sexual assault, formerly section 12-13, is now section 11-1.20
(720 ILCS 5/11-1.20); the statute that addresses aggravated
criminal sexual assault, formerly section 12-14, is now section
11-1.30 (720 ILCS 5/11-1.30); the statute that addresses the
offense of predatory criminal sexual assault of a child, formerly
section 12-14.1, is now section 11-1.40 (720 ILCS 5/11-1.40);
the statute that addresses the offense of criminal sexual abuse,
formerly section 12-15, is now section 11-1.50 (720 ILCS 5/11-
1.50); and the statute that addresses the offense of aggravated
criminal sexual abuse, formerly section 12-16, is now section
11-1.60 (720 ILCS 5/11-1.60). Both the pre-amended and
amended section 115-13 are provided in the appendix to this
guide at Appendix K.
deciSionS applying the Statute underlying ire 803(4)(b)
In People v. Falaster, 173 Ill. 2d 220 (1996), the supreme court
held that section 115-13 of the Code of Criminal Procedure,
which is the basis for IRE 803(4)(B) and a codication of the
common-law rule that admits statements concerning medical
treatment and which—the court noted—does not distinguish
between examining physicians and treating physicians, permit-
ted admissibility of a victim’s statement to medical personnel
about sexual history, including the identication of the offender
who was the victim’s father. In response to the defendant’s
contention that the statute “did not authorize the nurse to
testify to the victim’s identication of the offender because
the identication was irrelevant to the victim’s diagnosis and
treatment” (Falaster, 173 Ill. 2d at 229), the supreme court held
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ARTICLE VIII. HEARSAY
RULE 803
that “at least in the family setting, a victim’s identication of a
family member as the offender is closely related to the victim’s
diagnosis and treatment in cases involving allegations of sexual
abuse.” Id. at 230.
In People v. McNeal, 405 Ill. App. 3d 647 (2010), the
appellate court held that a nurse’s testimony about a triage
nurse’s note concerning the sexual assault of the victim was
not hearsay because it was relevant to the nurse’s actions in
treating the victim. But even if it were hearsay, the court held,
it was admissible under section 115-13 of the Code of Criminal
Procedure as an exception to the hearsay rule, adding that the
fact that the information on the note was taken by a nurse other
than the nurse who testied at trial was not a bar to the admis-
sion of the evidence. Moreover, the court held, the evidence
was not “testimonial hearsay” and therefore did not violate the
confrontation clause, pursuant to the holding in Crawford v.
Washington, 541 U.S. 36 (2004).
In People v. Freeman, 404 Ill. App. 3d 978 (2010), the
appellate court recognized the conict between section 115-3,
which allows admissibility, and the rape shield statute (725
ILCS 5/115-7(a)—provided at Appendix E, and discussed in the
Author’s Commentary on Ill. R. Evid. 412), which denies admis-
sibility. The court held that the statement of the victim that she
had not had previous sexual intercourse, made to a doctor by
the 12-year-old victim of a sex offense, was admissible because
it was relevant to the issue of whether, based on the physical
examination of the victim by the doctor, a sexual assault had
occurred.
In People v. Spicer, 379 Ill. App. 3d 441 (2008), the appel-
late court upheld, as an exception to the hearsay rule, the
admission of the victim’s statement to a doctor that she had
been “tied and raped,” over the defendant’s contention that she
had not sought treatment, but only evidence collection. The
court held that the statement by the elderly victim, who was
unable to be present for trial because of a medical condition,
was admissible as an exception to the hearsay rule, based on
Falaster’s holding that section 115-13 does not distinguish
between treatment and diagnosis. The court held, however,
that there had been a violation on the separate issue of the
Sixth Amendment Confrontation Clause, but that the error was
harmless because of the strong corroborating nature of the
defendant’s confession.
In People v. Drake, 2017 IL App (1st) 142882 (partially
afrmed and partially reversed in People v. Drake, 2019 IL
123734), while in a bathtub, a six-year-old boy suffered sec-
ond- and third-degree burns on his buttocks, genital region,
and on both feet up to his ankles. After more than a week in
the hospital, he told a nurse that the defendant, his step-father,
had poured a cup of hot water on him. The primary issue for
the appellate court was the propriety of the admission into evi-
dence, in this bench trial, of the boy’s statements to the nurse—
primarily the boy’s identication of the defendant as the person
responsible for his injuries. Finding that the boy’s statement
was not made to assist in his medical diagnosis or treatment,
in that it occurred more than a week after the treatment for
his injuries had commenced, the appellate court held that “the
common-law exception to the hearsay rule did not apply to the
identication portion of [the boy’s] statement.” Id. at ¶ 25. The
appellate court therefore held that the trial court had abused its
discretion in admitting the statements. It therefore reversed the
defendant’s conviction for aggravated battery, holding in addi-
tion, with one justice dissenting, that double jeopardy barred a
retrial. On further review in People v. Drake, 2019 IL 123734,
the supreme court noted that the State did “not dispute the
appellate court’s holding that admission of [the boy’s] out-of-
court statement was reversible error.” Drake, 2019 IL 123734,
¶ 18. But on the issue of double jeopardy, nding that even the
improperly admitted evidence as well as other circumstantial
evidence should be considered in determining the application
of double jeopardy, the supreme court reversed the appellate
court’s holding that double jeopardy barred a retrial. The case
was therefore remanded to the circuit court for retrial.
As a follow-up to Falaster and Drake, the Seventh Circuit
case of Lovelace v. McKenna, 894 F.3d 845 (7th Cir. 2018), has
relevance. In Lovelace, plaintiff sought to corroborate his claim
that the defendants, Illinois Department of Corrections correc-
tional ofcers, had beaten him, causing the injuries that were
the subject of his federal lawsuit. He sought to do this through
the proffer of evidence that, a couple of months after the
alleged beating, he told a psychologist from whom he sought
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248RULE 803
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
treatment that the defendants had beaten him. In her report,
the psychologist had noted that plaintiff told her that “the C/Os
kicked my ass.” The district court allowed evidence of plaintiff’s
statements to a nurse and a physician’s assistant, immediately
after the alleged incident, that he had been in a ght, had suf-
fered injuries, and required pain medication; however, those
statements contained nothing about the defendants’ beating
plaintiff. (Plaintiff had been in a ght with a fellow inmate
on the same day as the alleged beating by the defendants.)
The district court also allowed the notes of the psychologist
to be admitted, but it redacted plaintiff’s statement about the
“ass-kicking” and barred the psychologist from testifying about
it on the basis that it constituted inadmissible hearsay. On
appeal from a verdict for the defendants, the Seventh Circuit
found no abuse of discretion in this ruling, rejecting plaintiff’s
argument that the statement related to damages. Moreover, it
rejected plaintiff’s contention that FRE 803(4)(A) which, similar
to the Illinois rule, allows admissibility if the statement “is
made for—and is reasonably pertinent to—medical diagnosis
or treatment.” The court held that the district court had not
abused its discretion in nding that the statement did not fall
within the exception because it was not made for diagnosis or
treatment, and the district court was permitted to rely on the
psychologist’s assessment of what statements were made for
medical treatment.
Another relevant Seventh Circuit decision is United States
v. Norwood, 782 F.3d 1932 (7th Cir. 2020). In that case, a jury
convicted defendant of attempted transportation of a minor, a
15-year-old girl, across state lines with the intent that the minor
engage in prostitution. The minor did not testify at trial. Instead,
a sexual assault nurse examiner testied to what the minor had
told her about sexual encounters with numerous men, with-
out disclosing defendant’s name. The nurse’s notes, with the
defendant’s name extracted, also were admitted. In response
to defendant’s contention that his right of confrontation was
denied by this procedure, the Seventh Circuit reasoned that the
sexual assault examination served both medical and investiga-
tory purposes but, given the redaction of defendant’s name, it
concluded that the statements of the minor were for the primary
purpose of medical attention, and it held that defendant’s right
to confrontation was not violated. Norwood, at 1042-1052.
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ARTICLE VIII. HEARSAY
RULE 803
Author’s Commentary on Ill. R. Evid. 803(5)
IRE 803(5) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011—except for the non-adoption of the last sentence (which
is substantively identical to the last sentence in the current
federal rule). That sentence was not adopted because Illinois
allows a recorded recollection to be received into evidence
at the request of either the proponent or the opponent of the
evidence. See People v. Olson, 59 Ill. App. 3d 643 (1978)
for a discussion of authorities and a general recitation of the
principles.
It should be noted that, though the rule is listed under the
803 rules—where the availability of the declarant is deemed to
be immaterial—because the rule applies only where a witness
has insufcient recollection and provides a sufcient founda-
tion for admission, the presence of the witness who authored or
adopted the report is essential. Arguably, the 803 designation
has relevance to the extent that it may apply to the availability
or unavailability of the author or authors of a report adopted
by the witness.
This designation as a hearsay exception allows the admission
of the memorandum or record of the “recorded recollection”
into evidence under both the federal and Illinois rules. But the
last sentence of the federal rule allows the record only to be
“read into evidence,” at the behest of the proponent, while
allowing only the adverse party to offer it in evidence as an
exhibit. As pointed out above, the Illinois rule allows the mem-
orandum or record to be offered into evidence by either party.
This hearsay exception admits what is contained in the
memorandum or record, thus allowing the trier of fact to
determine what weight to give that document. Admission of
evidence based on “refreshed memory,” on the other hand,
does not create a hearsay exception. In that situation, a wit-
ness’s testimony based on refreshed memory is admitted under
normal rules of relevancy, and a refreshing document is not
admitted into evidence.
In Kociscak v. Kelly, 2011 IL App (1st) 102811, the appellate
court cited previous cases discussing this hearsay exception,
noting that, although some cases “described the elements
of past recollection recorded using different terminology,”
the cases are consistent despite that difference. Kociscak, at
¶¶ 26-27.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about
but now cannot recall well enough to testify fully
and accurately;
(B) was made or adopted by the witness when
the matter was fresh in the witness’s memory; and
(C) accurately reects the witness’s knowledge.
If admitted, the record may be read into evidence
but may be received as an exhibit only if oered by an
adverse party.
(5) Recorded Recollection. A memorandum or
record concerning a matter about which a witness once
had knowledge but now has insucient recollection to
enable the witness to testify fully and accurately, shown
to have been made or adopted by the witness when the
matter was fresh in the witness’ memory and to reect
that knowledge correctly.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
250RULE 803
ARTICLE VIII. HEARSAY
(6) Records of a Regularly Conducted Activity. A
record of an act, event, condition, opinion, or diagnosis
if:
(A) the record was made at or near the time
by—or from information transmitted by—someone
with knowledge;
(B) the record was kept in the course of a regu-
larly conducted activity of a business, organization,
occupation, or calling, whether or not for prot;
(C) making the record was a regular practice of
that activity;
(D) all these conditions are shown by the testi-
mony of the custodian or another qualied witness,
or by a certication that complies with Rule 902(11)
or (12) or with a statute permitting certication; and
(E) the opponent does not show that the source
of information or the method or circumstances of
preparation indicate a lack of trustworthiness.
(6) Records of Regularly Conducted Activ-
ity. Except for medical records in criminal cases, a
memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or diag-
noses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and
if it was the regular practice of that business activity to
make the memorandum, report, record or data compi-
lation, all as shown by the testimony of the custodian
or other qualied witness, or by certication that
complies with Rule 902(11), unless the opposing party
shows that the source of information or the method or
circumstances of preparation indicate lack of trustwor-
thiness. e term “business” as used in this paragraph
includes business, institution, association, profession,
occupation, and calling of every kind, whether or not
conducted for prot.
Author’s Commentary on Ill. R. Evid. 803(6)
The regular practice of business and a “calling of every kind”
in relying on documents to function appropriately, combined
with the expediency of bypassing the usually unnecessary task
of calling witnesses to satisfy chain of evidence requirements,
provide the rationale for this exception to the hearsay rule.
IRE 803(6)—commonly referred to as the “business records
exception” to the hearsay rule—is identical to the pre-amended
federal rule before the latter’s amendment solely for stylistic
purposes effective December 1, 2011, except for the deletion
of the reference to “FRE 902(12)” (which is also present in
subdivision (D) of the current federal rule), because that rule
was incorporated into IRE 902(11) and it therefore was not
separately adopted in Illinois. Another difference from the
federal rule is that, as is clear from the rst phrase in the Illinois
rule, medical records in criminal cases are excluded from this
hearsay exception because they also are excluded by section
115-5(c)(1) of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-5(c)(1)). That statute constitutes the sole basis for the
exclusion of medical records in IRE 803(6). Note, however, the
appellate court decisions addressed just below, where hospital
records were admitted in a criminal case under the business
records exception to the hearsay rule based on a statute that
was determined not to be inconsistent with the evidence rule.
deciSionS allowing admiSSion of hoSpital-related recordS
In People v. Hutchison, 2013 IL App (1st) 102332, the
appellate court addressed the foundational requirements for
admission of a hospital lab report on blood alcohol level. In
an opinion citing relevant Illinois cases and statutes, the court
approved the admission of a lab report as a business record
exception to the hearsay rule. It reasoned that, although sec-
tion 115-5(c)(1) of the Criminal Code of Procedure (725 ILCS
5/115-5(c)) and IRE 801(6) normally prohibit medical records
as business records in criminal cases, section 11-501.4 of the
Illinois Vehicle Code (625 ILCS 5/11-501.4) specically pro-
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
251
ARTICLE VIII. HEARSAY
RULE 803
vides for the results of blood tests performed for the purpose
of determining the content of alcohol, and “that the statutory
provision allowing the introduction of medical records in the
prosecution of DUI cases promulgated in section 11-501.4 sur-
vives the enactment of the Illinois Rules of Evidence and is not
affected or modied thereby.” Hutchison, at ¶ 24. In approving
the testimony of the nurse who drew the defendant’s blood, the
court also noted that, to lay a proper foundation for the admis-
sion of business records generally, it is not necessary for the
maker of the records or the custodian of the records to testify,
and it pointed out that, in a case such as this, chain-of-evidence
testimony is related to the weight of testimony rather than
admissibility.
Later, in People v. Turner, 2018 IL App (1st) 170204, the
appellate court applied Hutchison in holding that evidence
from a hospital blood draw, used to prove the defendant’s
blood alcohol serum level, was properly admitted in evidence,
despite IRE 803(6)’s exclusion from the business record
exception of medical records in criminal cases. The defendant
had argued that section 11-501.4 of the Illinois Vehicle Code
(625 ILCS 5/11-501.4), which permits admission, under the
business record exception to the hearsay rule, of the results of
“blood or urine tests performed for the purpose of determining
the content of alcohol” when taken in a hospital emergency
room, conicted with and was preempted by the exclusion
that applies to criminal cases in IRE 803(6). Citing, as did the
Hutchison court, the rst two sentences in the fourth paragraph
of the general Committee Commentary to the Illinois Rules of
Evidence (see he fourth paragraph on page 1 of this guide) about
the codied rules not intending “to abrogate or supersede any
current statutory rules of evidence,” the appellate court held
that it could not nd “an irreconcilable conict” between the
statute and the evidence rule. Turner, at ¶ 72.
Still later in this series of decisions, a majority of a panel
of the appellate court in People v. Deroo, 2020 IL App (3d)
170163, appeal allowed 9/30/2020, Docket No. 126120, fol-
lowed the holding in Hutchison in approving the admission of
the defendant’s hospital blood test results. Like Hutchison and
Turner, the majority noted that there was compliance with the
requirements of section 11-501.4 of the Illinois Vehicle Code
(625 ILCS 5/11-501.4). Having so noted, it concluded “that
section 11-501.4 of the Vehicle Code specically allows the
hospital blood test results to be admitted at defendant’s trial,
despite the more general prohibitions contained in Rule 803(6)
of the Illinois Rules of Evidence and in section 115-5(c) of the
Code of Criminal Procedure.” Deroo, at ¶ 44. The dissenting
justice contended that Hutchison was wrongly decided, that
the evidence rule’s plain terms conicted with the statute’s
terms, and that under prior decisions of the supreme court, the
supreme court has the primary constitutional authority over
court procedure and therefore the supreme court rule prevails.
Neither the majority nor the dissent noted or discussed Turner.
Earlier, in People v. Wuckert, 2015 IL App (2d) 150058, the
appellate court applied section 11-501.4-1 in upholding the
propriety of a nurse providing a requesting police ofcer the
results of the defendant’s urine test, which had been obtained
during the course of his medical treatment and which estab-
lished the presence of intoxicating compounds in his body.
Later, in People v. Mueller, 2021 IL App (2d) 190868, the appel-
late court applied Wuckert in holding that section 11-501.4-1
allowed police to obtain the results of a medical blood test
taken by a hospital from the defendant after a car accident.
The takeaway from the above cases: As noted above, the
supreme court has allowed leave to appeal in Deroo. As also
noted, in addition to that decision, a number of panels of the
appellate court have concluded that hospital blood test results
are properly admissible under section 11-501.4 of the Illinois
Vehicle Code despite the general prohibition in IRE 803(6).
Indeed, the dissenting justice’s opinion in Deroo is an outlier
to that authority. If the supreme court reverses Deroo, it will
do so based on the explicit statement in IRE 803(6)—derived
from a state statute—that medical records in criminal cases are
excluded from the Rule. But there is signicant authority for
not overruling Deroo because, as noted above, the prohibition
against admitting hospital records in criminal cases in IRE
803(6) was based solely on the state statute in the Criminal
Code of Procedure (725 ILCS 5/115-5(c)(1))—a statute that
conicts with the statute in the Illinois Vehicle Code (625 ILCS
5/11-501.4), but one the legislature is validly authorized to
alter or create in its entirety or in part.
COMMENTARY CONTINUED
252RULE 803
ARTICLE VIII. HEARSAY
“buSineSS” defined
It should be noted that the expression “business records
exception” is potentially misleading. That is so because the
rule incorporates more than records kept in the course of a
regularly conducted business activity. That is made clear by the
denition of “business” in the nal sentence of the rule (and
in subdivision (B) of the current federal rule). There, the term
“business” is dened to include a broad category of regularly
conducted activities, “whether or not conducted for prot.”
the certification option and the rule’S underlying Statute and
Supreme court rule
The adoption of the certication option of IRE 902(11) in IRE
803(6) constitutes a substantive change from Illinois common
law by providing an alternative to the prior requirement for
the testimony of the custodian of the records or a person with
knowledge of them to provide the foundational basis for the
introduction of the evidence. The certication should provide
the same information that would be provided by the founda-
tional witness. Except for the provision allowing for certica-
tion, the rule is consistent with the provisions of section 115-5
of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5),
as well as of Supreme Court Rule 236, which applies in civil
cases. Section 115-5 and Supreme Court Rule 236 are provided
in the Appendix to this guide at Appendix L.
See also the Committee’s general commentary related to
this rule and to IRE 803(8) in the paragraph entitled “Structural
Change” starting on page 6 of this guide.
amendmentS to rule 803(6) to clarify that the burden of proof
for “lack of truStworthineSS” iS on the party-opponent
FRE 803(6)(E) was added to FRE 803(6) effective December
1, 2011, when amendments were made solely for stylistic
purposes. That rule was amended again effective December
1, 2014, merely to clarify that the burden of showing “that
the source of information or the method of circumstances of
preparation indicate a lack of trustworthiness” is on the party
opposing the admission of the record rather than on the pro-
ponent of the evidence. Though the Illinois rule does not have
a subdivision (E), effective September 28, 2018, the Illinois
Supreme Court amended IRE 803(6) to remove any ambiguity
as to who has the burden by making it clear that the burden
of proving lack of trustworthiness is on the opponent of the
evidence. This is logical because, as in the federal rule, the
foundation for admission will have been met through the pro-
ponent’s satisfying the rule’s other requirements, and because
proving “lack of trustworthiness” is in the opponent’s interest,
not a result sought by the proponent of the evidence. It should
be noted that in its amendment of the rule for the sake of clar-
ity, the supreme court moved the phrase “Except for medical
records in criminal cases” to the beginning of the rule, rather
than in its former placement at the end of the rule’s penultimate
sentence .
PeoPle v. leaCh: autopSy reportS
For a signicant case involving this business record excep-
tion to the hearsay rule and whether, in a criminal case, an
autopsy report is inadmissible as “testimonial hearsay” under
the theory that the right to confrontation under the Sixth
Amendment may be violated, see People v. Leach, 2012 IL
111534. In Leach, the supreme court held that either this rule
or IRE 803(8) provided a proper foundation for the introduction
of autopsy reports as provided by section 115-5.1 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/115-5.1; provided
at Appendix M). As relevant to this rule, the supreme court
held that an autopsy report is not a “medical record” for the
simple reason that a deceased person is not a patient and the
medical examiner is not the deceased person’s doctor. Leach,
2012 IL 111534 at ¶ 71. For more on the statute and a thorough
discussion of the Leach opinion, see the Author’s Commentary
on Ill. R. Evid. 803(8).
relevant StatuteS
A statute relevant to this exception to the hearsay rule is
section 8-401 of the Code of Civil Procedure (735 ILCS 5/8-
401), which addresses the admissibility of account books and
records.
Another relevant statute, providing a business record excep-
tion for civil cases involving abused, neglected, or dependent
minors, is in section 2-18(4)(a) of the Juvenile Court Act of
1987 (705 ILCS 405/2-18(4)(a)). For decisions involving appli-
cation of the statute and discussing other cases, see In re J.L.,
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ARTICLE VIII. HEARSAY
RULE 803
M.L., and A.L., 2016 IL App (1st) 152479; and In re Nylami M.,
2016 IL App (1st) 152262 (pointing our that the statute is “a
variation of the common law business records exception” in
cases involving a minor in an abuse, neglect or dependency
proceeding). But for a decision holding that the hearsay
exception was improperly invoked and applied based on the
State’s failure to comply with the certication requirement of
the statute, resulting in the reversal and remand of the circuit
court’s nding that respondents were unt parents, see In Re
M.H., 2020 IL App (3d) 190731.
Selected poSt-codification deciSionS addreSSing the buSineSS
recordS exception
For an example of a case afrming the admission of an
insurance carrier’s claim le related to a workers’ compensa-
tion claim under this exception to the hearsay rule, see Holland
v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560. In
that case, the appellate court considered the admission of the
claim le as a business record, rejecting objections based on
(1) hearsay within hearsay; (2) attorney-client privilege; (3)
preparation in anticipation of litigation; and (4) work-product
protection. Holland, at ¶¶ 177-206.
In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C.,
2014 IL App (1st) 121111, the appellate court addressed the
foundational requirements for business records, providing
citations to other cases and noting that the adoption of the rule
made no substantive changes to the requirements of Supreme
Court Rule 236. Pointing out, as other cases have, that a
computer-generated business record is admissible under this
exception to the hearsay rule, the court provided the require-
ments for the admission of such evidence and addressed other
issues related to admissibility.
In People v. Harris, 2014 IL App (2d) 120990, ¶¶ 20-22, the
appellate court held that there had not been a proper founda-
tion for admission of a logbook showing that a Breathalyzer
machine used to conduct a breath test on the defendant had
been certied as accurate. The court held that, “A review
of Kozlowski’s [the police ofcer who administered the
Breathalyzer] testimony makes clear that, although he testied
that the record was kept in the regular course of business for
the Belvidere police department, he never testied that ‘it was
the regular course of such business to make such memorandum
or record at the time of such act, transaction, occurrence, or
event or within a reasonable time thereafter.’” Harris, at ¶ 22.
(Emphasis added by the court). The appellate court held that,
although the logbook was “documented and signed” by
another ofcer, the ofcer who administered the test and testi-
ed presented no testimony that the other ofcer documented
and signed the logbook “at the time of such [certication] or
within a reasonable time thereafter,” and that “[w]ithout this
testimony, the State failed to lay the necessary foundation.” Id.
In People v. Eagletail, 2014 IL App (1st) 130252, a DUI case,
the appellate court cited IRE 803(6) in holding that there was
a sufcient foundation for admission of a computer-generated
copy of the printout from the breath machine to satisfy the
business records exception to the hearsay rule.
In People v. Ramos, 2018 IL App (1st) 151888, a police
detective testied to receiving information from T-Mobile
derived from the mobile phone of the defendant’s co-defen-
dant. That information conrmed that the co-defendant, who
was identied, along with the defendant, as one of the two
robbers of the victim, had traveled the same route on the same
date and time as the victim before and to the point of the
robbery, by following coordinates of “pings” off of cell towers.
But no business records form T-Mobile were introduced at
trial. The information concerning the pings came solely from
the testimony of the detective. Finding that the testimony of
the detective was hearsay that was not subject to any hearsay
exception, and pointing out that the same information could
properly have been introduced through T-Mobile’s business
records (which are subject to an exception to the hearsay rule),
the appellate court found sufcient error to reverse the defen-
dant’s conviction and remand the case for a new trial.
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254RULE 803
ARTICLE VIII. HEARSAY
(7) Absence of a Record of a Regularly Conducted
Activity. Evidence that a matter is not included in a
record described in paragraph (6) if:
(A) the evidence is admitted to prove that the
matter did not occur or exist;
(B) a record was regularly kept for a matter of
that kind; and
(C) the opponent does not show that the possi-
ble source of the information or other circumstances
indicate a lack of trustworthiness.
(7) Absence of Entry in Records Kept in Accor-
dance With the Provisions of Paragraph (6). Evi-
dence that a matter is not included in the memoranda
reports, records, or data compilations, in any form, kept
in accordance with the provisions of paragraph (6), to
prove the nonoccurrence or nonexistence of the matter,
if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made
and preserved, unless the opposing party shows that the
sources of information or other circumstances indicate
lack of trustworthiness.
Author’s Commentary on Ill. R. Evid. 803(7)
This rule is premised on the rationale that the failure of a
record to mention a matter logically expected to be mentioned
satises evidence of its nonexistence.
IRE 803(7) is identical to the pre-amended federal rule
before the latter’s amendment solely for stylistic purposes
effective December 1, 2011. FRE 803(7)(C), which had been
added to the federal rule when the stylistic changes occurred,
was again amended effective December 1, 2014. The amended
language of subdivision (C) in the current federal rule is meant
to clarify that the burden of showing “that the possible source
of the information or other circumstances [that] indicate a lack
of trustworthiness” is on the party opposing the absence of the
records rather than on the proponent of the evidence.
Though the Illinois rule does not have a separate subdivision
(C), effective September 28, 2018, the Illinois Supreme Court
also amended IRE 803(7) to end any ambiguity about who has
the burden, by placing the burden of proof concerning the
lack of trustworthiness on the opponent of the evidence. This
was a logical amendment because, as in the federal rule, the
foundation for showing the absence of records will have been
met through the satisfaction of the rule’s other requirements,
and because proving “lack of trustworthiness” is in the oppo-
nent’s interest, and not a result sought by the proponent of the
evidence.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
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ARTICLE VIII. HEARSAY
RULE 803
(8) Public Records. A record or statement of a
public oce if:
(A) it sets out:
(i) the oce’s activities;
(ii) a matter observed while under a legal duty
to report, but not including, in a criminal case,
a matter observed by law-enforcement personnel;
or
(iii) in a civil case or against the government
in a criminal case, factual ndings from a legally
authorized investigation; and
(B) the opponent does not show that the source
of information or other circumstances indicate a lack
of trustworthiness.
(8) Public Records and Reports. Records, reports,
statements, or data compilations, in any form, of public
oces or agencies, setting forth (A) the activities of the
oce or agency, (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty
to report, excluding, however, police accident reports
and in criminal cases medical records and matters
observed by police ocers and other law enforcement
personnel, or (C) in a civil case or against the State in a
criminal case, factual ndings from a legally authorized
investigation, but not ndings containing expressions
of opinions or the drawing of conclusions, unless the
opposing party shows that the sources of information
or other circumstances indicate lack of trustworthiness.
Author’s Commentary on Ill. R. Evid. 803(8)
This exception to the hearsay rule is “based upon the
assumptions that public ofcers will perform their duties and
are without motive to falsify, and that public inspection, to
which some such records are subject, will disclose inaccura-
cies” (see People ex rel Wenzel v. C&NW Ry. Co., 28 Ill. 2d
205, 212 (1963)), and that ofcials are unlikely to be available
later or to remember details independently of the record.
IRE 803(8)(A) is identical to FRE 803(8)(A) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011—resulting in what is now designated as FRE 803(A)(i).
IRE 803(8)(B) is identical to pre-amended FRE 803(8)(B)—now
designated as FRE 803(8)(A)(ii)—but with two exceptions, the
rst of which is the addition in the Illinois rule of the exclusions
for “police accident reports” and, in criminal cases, “medical
records,” in order to codify Illinois law as provided in Illinois
Supreme Court Rule 236(b) (as to police accident reports) and
in 725 ILCS 5/115-5(c) (as to medical records). (See Appendix
L for both the statute and the supreme court rule.)
Supreme court’S addition of SubdiviSion (c)
When the Illinois rules rst were codied, IRE 803(8) did
not include what was FRE 803(8)(C) in the pre-amended federal
rule, and is now FRE 803(8)(A)(iii) in the current federal rule.
Although the reason for non-adoption of that subdivision is
unclear, it may have been due to concern about the expansion
of the federal rule in Beech Aircraft Corporation v. Rainey,
488 U.S. 153 (1988), where the United States Supreme Court
interpreted the rule to allow not only the admission of “fac-
tual ndings” but also the admission of the opinion that pilot
error was the cause of an airplane crash. That interpretation is
inconsistent with Illinois common law. Illinois has not adopted
the Beech Aircraft interpretation. But the portion of the rule
that was not adopted refers to “factual ndings,” and Illinois
decisions make it clear that the hearsay exception applies only
to “factual ndings,” not opinions or conclusions.
So, it is not surprising that, effective September 28, 2018, the
Illinois Supreme Court amended IRE 803(8) to include what is
now subdivision (C)., with the special precaution, that the fac-
tual ndings from a legally authorized investigation not include
“expressions of opinions or the drawing of conclusions.”
For a supreme court decision that provides the justication
for this common-law exception to the hearsay rule, see People
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
256RULE 803
ARTICLE VIII. HEARSAY
ex rel Wenzel v. Chicago and North Western Ry. Co., 28 Ill. 2d
205, 211-12 (1963):
“At common law it has long been settled as an
exception to the hearsay rule that records kept by
persons in public ofce, which they are required
either by statute or the nature of their ofce to
maintain in connection with the performance of
their ofcial duties, are admissible in evidence
and are evidence of those matters which are
properly required to be maintained and recorded
therein. [Citations.] This exception, as pointed out
by Professor Cleary, is ‘based upon the assump-
tions that public ofcers will perform their duties
and are without motive to falsify, and that public
inspection, to which some such records are sub-
ject, will disclose inaccuracies.’”
For an example of an Illinois case distinguishing factual
ndings from conclusions, see Barker v. Eagle Food Centers,
261 Ill. App. 3d 1068 (1994), where the appellate court held
that a statement in a “Care Report” prepared by reghters was
properly not admitted because the reghters were not qualied
to provide evidence concerning the cause of the plaintiff’s slip
and fall, and where the general common-law rules concerning
admission of public records in Illinois were provided:
“Ofcial records kept by public ofcials are gen-
erally admissible as an exception to the hearsay
rule if required by statute or authorized to be
maintained by the nature of the ofce; however,
records made by public ofcials or employees that
concern causes and effects, involving the exercise
of judgment and discretion, expressions of opin-
ion, or the drawing of conclusions, are generally
not admissible under the public records exception
unless they concern matters about which the of-
cial would be qualied to testify at trial.”
In Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d
643 (2003), a decision that illustrates the admissibility of “fac-
tual ndings,” the appellate court approved the admission of
the National Transportation Safety Board’s factual report based
on the information contained in ight planning documents. The
court favorably cited a federal district court that: “The majority
of courts allow the admission of factual reports as long as they
do not contain agency conclusions on the probable cause of
accidents.” Barker, 261 Ill. App. 3d at 1074.
Examples of Illinois decisions on the non-admissibility of
“opinions” contained in public reports include Bloomgren v.
Fire Insurance Exchange, 162 Ill. App. 3d 594 (1987) (error
to admit opinion as to the cause of a re in a re incident
report “that the ‘ignition factor’ of the re was ‘electrical,’ and
that the equipment involved in ignition was ‘xed wiring’);
Lombard Park District v. Chicago Title & Trust Co., 105 Ill. App.
2d 371 (1969) (agency was not authorized to make ood plain
determinations).
The adoption of IRE 803(C)—without Beech Aircraft’s inter-
pretation—appropriately reects Illinois common law. That
adoption accurately reects Illinois’ allowance of “factual nd-
ings from a legally authorized investigation,” while eschewing
“causes and effects, involving the exercise of judgment and dis-
cretion, expressions of opinion, or the drawing of conclusions.”
September 28, 2018 clarification that the burden of proof for
“lack of truStworthineSS” iS on the party-opponent
When the federal rules were amended effective December
1, 2011—solely for stylistic purposes—the last clause of what
had been FRE 803(8)(C) became FRE 803(8)(B). It then read:
“neither the source of information nor other circumstances
indicate a lack of trustworthiness.” That version of FRE 803(8)
(B) was again amended to its present form, effective December
1, 2014, this time to establish that the burden of proving “lack
of trustworthiness” is on the party-opponent. According to the
federal Advisory Committee on Evidence Rules, the amendment
that resulted in the current version of FRE 803(8)(B) was meant
merely to clarify that the burden of showing “that the source
of the information or other circumstances [that] indicate a lack
of trustworthiness” is on the party opposing the admission of
public records rather than on the proponent of the evidence.
As part of its amendments effective September 28, 2018,
the Illinois Supreme Court also added language to IRE 803(8)
that claried that the burden of proving lack of trustworthiness
is on the opponent of the evidence. That language is justied
because, as in the federal rule, the foundation for admission
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ARTICLE VIII. HEARSAY
RULE 803
will have been met through the proponent’s satisfying the rule’s
other requirements, and because showing “lack of trustworthi-
ness” is what the opponent seeks, not a result sought by the
proponent of the evidence. Moreover, there is common-law
support for placing the burden on the opponent of the evi-
dence. In Steward v. Crissell, 289 Ill. App. 3d 66 (1997), where
the issue was the admissibility of the medical examiner’s tox-
icology report under section 115-5.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-5.1) the appellate court
held:
“Courts generally allow public records into evi-
dence based in part on the presumption that pub-
lic ofcials, with no motive to falsify records, will
perform their assigned duties properly. [Citations.]
To overcome this presumption, the party chal-
lenging such records has the burden of presenting
evidence to show that the records are unreliable.”
committee’S general commentary
See also the Committee’s general commentary related to
this rule and IRE 803(6) in the paragraph entitled “Structural
Change” starting on page 6 of this guide.
ruleS for authenticating, for Self-authenticating by certification,
and for admitting a copy
For the rule that provides methods for authenticating or
identifying public records and reports, see IRE 901(b)(7). For
the rule that provides for self-authentication by the certication
of public records, see IRE 902(4). For the rule that allows the
admissibility of public records by a “copy certied as correct in
accordance with Rule 902,” see IRE 1005. Also, see Ill. S. Ct.
R. 216(d), which is provided in the Author’s Commentary on
Ill. R. Evid. 1005, and which provides a method for admitting
public records by furnishing notice to an adverse party, who
has 28 days to object.
poSt-codification deciSionS
For examples of appellate court cases applying IRE 803(8),
see People ex rel. Madigan v. Kole, 2012 IL App (2d) 110245
(holding that an IRS Report and a Waiver were admissible
under this public records exception to the hearsay rule (and
were self-authenticating under IRE 902(1)), and thus reversing
a grant of summary judgment for defendant and granting sum-
mary judgment in favor of plaintiff); Village of Arlington Heights
v. Anderson, 2011 IL App (1st) 110748 (afrming afant’s
reliance on public records and holding that county treasurer
reports are public records, and further holding that, before the
adoption of IRE 803(8), Supreme Court Rule 236 recognized
both business records and public records as exceptions to the
hearsay rule and that the legal principles behind the rule are
not new and that the rule makes no distinction between public
records and computerized public records); Feliciano v. Geneva
Terrace Estates HOA, 2014 IL App (1st) 130269, ¶¶ 50-51
(holding admissible under IRE 803(8) both a document pre-
pared by the city’s department of planning and development,
after plaintiffs submitted their building plans for approval, and
an e-mail reporting on the activities of the ofce in answering
the parties’ inquiry in reporting on nding no ofcial record
of an easement); and People v. McCullough, 2015 IL App
(2d) 121364, ¶ 113 (holding that FBI reports written after a
kidnapping and murder of a seven-year-old girl more than 50
years before charges were brought against the defendant were
not admissible as public documents under this rule, because
they contained multiple layers of hearsay, thus violating the
requirement of IRE 805 that each layer of hearsay be excused
by its own exception. (Postscript on McCullough: On April 22,
2016, charges against Jack McCullough were dismissed by the
circuit court, four years after his conviction, and a week after
his conviction had been vacated, based on the statement of the
successor to the state’s attorney who prosecuted the case that
there had been aws in the investigation and prosecution.)).
PeoPle v. mCClanahan: invalidity of Section 115-15
Note that section 115-15 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/115-15), for prosecutions under the
Cannabis Control Act, the Illinois Controlled Substances Act,
the Methamphetamine Control and Community Protection
Act, or for reckless homicide or DUI, allows the State to use
lab reports in lieu of actual testimony as prima facie evidence
of the contents of the substance at issue unless the defendant
les a demand for the testimony of the preparer of the report.
That statute, however, though not repealed, has been held
unconstitutional as violative of the confrontation clause of the
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258RULE 803
ARTICLE VIII. HEARSAY
federal and Illinois constitutions by the Illinois Supreme Court
in People v. McClanahan, 191 Ill. 2d 127 (2000).
Section 115-5.1: autopSy reportS
Note also that section 115-5.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-5.1), which is provided in
the appendix to this guide at Appendix M, makes admissible
as an exception to the hearsay rule, in both civil and criminal
actions, records kept in the ordinary course of business related
to medical examinations on deceased persons or autopsies,
when they are “duly certied by the county coroner, or chief
supervisory coroner’s pathologist or medical examiner.” The
reports that are admissible include, but are not limited to,
certied pathologist’s protocols, autopsy reports, and toxico-
logical reports. The statute provides that the preparer of the
report is subject to subpoena but, if that person is deceased,
a duly authorized ofcial from the coroner’s ofce may offer
testimony based on the reports.
Cases applying the statute, culminating in the Illinois
Supreme Court’s decision in People v. Leach, are discussed just
below under the next topic headings.
appellate court deciSionS conStruing Section 115-5.1
A number of appellate court cases have applied and
upheld the business records exception to the hearsay rule in
section 115-5.1 ((725 ILCS 5/115-5.1); available at Appendix
M) against attacks in criminal cases premised on the con-
frontation clause in general and the decisions in Crawford v.
Washington, 541 U.S. 36 (2004) (barring testimonial hearsay),
and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.
2527 (2009) (barring admission of certicates of analysis that
substance was cocaine), in particular. The Illinois Appellate
Court cases include People v. Antonio, 404 Ill. App. 3d 391
(2010); People v. Cortez, 402 Ill. App. 3d 468 (2010); People v.
Pitchford, 401 Ill. App. 3d 826 (2010); People v. Leach, 391 Ill.
App. 3d 161 (2009) (judgment afrmed on appeal, in People
v. Leach, 2012 IL 111534) (see discussion below); People v.
Moore, 378 Ill. App. 3d 41 (2007). See also Fatigato v. Village
of Olympia Fields, 281 Ill. App. 3d 347 (1996) (holding that a
toxicology report was a business record), but see also People v.
Lovejoy, 235 Ill. 2d 97 (2009), where the supreme court based
its approval of a pathologist’s reliance on a toxicology report,
where the toxicologist did not testify, not on the basis that it
was admitted substantively as a business record, but that it
contained data reasonably relied upon by expert pathologists
in determining cause of death. (Note also that in a case that
predates the Crawford decision, People v. Nieves, 193 Ill. 2d
513 (2000), the supreme court afrmed the testimony, in a mur-
der prosecution, of the chief medical examiner about the cause
of death of the decedent, on whom the autopsy was performed
by a retired pathologist who was out of the country at the time
of trial. The testimony was based on the autopsy report of the
absent pathologist, before the effective date of section 115-5.1.
There, the supreme court’s approval of the admission of the
chief medical examiner’s testimony was based on the reason-
able reliance standard of Rule 703, and not on the business
record exception.)
Subsequent to the above cases, the United States Supreme
Court decided Bullcoming v. New Mexico, 564 U.S. 647, 131
S. Ct. 2705 (2011). In that case, the Court applied Melendez-
Diaz in holding that the testimony of a forensic analyst, who
testied instead of the forensic analyst who had actually tested
and reported on the blood-alcohol concentration of the DWI
defendant but who was on “uncompensated leave,” constituted
a violation of the confrontation clause.
In People v. Dobbey, 2011 IL App (1st) 091518, the rst
appellate court case addressing the issue of the admissibility
of autopsy reports after the decision in Bullcoming, the court
adhered to the holdings in the appellate court cases listed
above, and distinguished the case at bar from Melendez-Diaz
(which, based on the admission of certicates of analysis, dealt
with proof of the specic fact that material connected to the
defendant was cocaine) and Bullcoming (which, based on a
lab report certifying results of a blood-alcohol test performed
on a sample taken from the defendant when he was arrested
for driving while intoxicated, dealt with proof of the specic
fact that the defendant’s blood-alcohol content was above a
certain limit). Dobbey distinguished those U.S. Supreme Court
decisions on the basis that they involved reports prepared
“solely for an ‘evidentiary purpose’” and were made in “aid of
a police investigation,” which made them testimonial in nature.
Dobbey, at ¶¶ 75-76.
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259
ARTICLE VIII. HEARSAY
RULE 803
COMMENTARY CONTINUED
PeoPle v. leaCh: admiSSibility of autopSy reportS aS not
“teStimonial”
In People v. Leach, 2012 IL 111534, on review of one of
the appellate court decisions listed above, the Illinois Supreme
Court afrmed the appellate court’s judgment, but “for reasons
other than those offered in the appellate court opinion.” Leach,
¶ 158. The supreme court therefore did not accept the appel-
late court’s reasons for the admissibility of the autopsy report,
which was based on the rationales that: (1) business records
are historically nontestimonial and thus excluded from the
Crawford rule related to the confrontation clause, and (2) the
report was admissible as reasonably relied upon by experts to
explain the bases of their opinions under IRE 703. Leach, ¶ 48.
The Leach court noted the plurality opinion in Williams v.
Illinois, 567 U.S. 50, 132 S.Ct. 2221 (2012), but distinguished
that opinion from the case at bar, pointing out that “in Williams,
the ‘report itself was neither admitted into evidence nor
shown to the factnder.’ The expert witness ‘did not quote or
read from the report; nor did she identify it as the source of
any of the opinions she expressed.’” In contrast to Williams,
the court noted that, in the case at bar, the testimony of the
expert witness (who was not the pathologist who performed the
autopsy and prepared the report) included the contents of the
autopsy report and the report itself was admitted into evidence.
Leach, at ¶¶ 56-57. The court therefore needed to determine (1)
whether the autopsy report was hearsay offered for the truth of
the matters inserted therein; (2) if hearsay, whether the report
was admissible under a hearsay exception; and (3) if admissible
under a hearsay exception, whether the report was testimonial
in nature and thus violated the confrontation clause in violation
of the Crawford holding. The answers to the rst and second
inquiries were “yes,” the autopsy report was hearsay, but it was
admissible under both IRE 803(6) and IRE 803(8), as well as the
statutory provisions of section 115-5.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-5.1; provided at Appendix
M).
As for the third and dispositive inquiry concerning the
confrontation clause, the supreme court concluded that the
designation of a document as a business record does not auto-
matically make it nontestimonial. The court then engaged in an
in-depth analysis of the evolving reasoning of the United States
Supreme Court in general, and its members in particular, related
to the Court’s holdings from Crawford, through Malendez-
Diaz and Bullcoming, to Williams. The court concluded that,
in analyzing the “primary purpose” concerning extrajudicial
statements that animates the views of the members of the U.S.
Supreme Court, and with special focus on conclusions drawn
from both the plurality and the dissent in Williams, “the autopsy
report in the present case was not testimonial because it was
(1) not prepared for the primary purpose of accusing a targeted
individual or (2) for the primary purpose of providing evidence
in a criminal case.” Leach, at ¶ 122. The court held that, even
when foul play is suspected and the medical examiner’s ofce
is aware of this suspicion, because the autopsy might reveal
that the deceased died of natural causes, an autopsy report is
not prepared to provide evidence against a targeted person.
Leach, at ¶ 126. Observing that, in addition to the plurality
and dissenting views in Williams, even “under Justice Thomas’s
‘formality and solemnity’ rule, autopsy reports prepared by a
medical examiner’s ofce in the normal course of its duties are
nontestimonial” (id. at ¶ 136), the supreme court concluded
that, because the autopsy report was nontestimonial in nature,
it did not violate the confrontation clause and it was properly
admitted.
application of leaCh
Leach was applied in People v. Hensley, 2014 IL App (1st)
120802, where, as in Leach, a pathologist other than the one
who performed the autopsy testied and the autopsy report was
admitted into evidence. In Hensley, the defendant argued that
error occurred because, unlike in Leach, the autopsy report
was certied. The appellate court rejected that argument,
noting that the report had not been certied by the examining
pathologist, but that a certied copy of the report had been
entered into evidence. The court noted that in an earlier case,
People v. Crawford, 2013 IL App (1st) 100310, ¶ 151, n. 12, the
facts were identical, and in that case, too, the appellate court
approved the admission of the report. See People v. Crawford,
2013 IL App (1st) 100310, ¶¶ 145-153 for that court’s applica-
tion of Leach.
260RULE 803
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
coroner’S verdict inadmiSSible
Note that, in contrast to section 115-5.1 of the Code of
Criminal Procedure discussed above, section 8-2201 of the
Code of Civil Procedure (735 ILCS 5/8-2201), which applies to
both civil and criminal cases and addresses records related to
autopsies, prohibits admissibility of evidence related to a cor-
oner’s verdict to prove any fact in controversy in a civil action.
chain of cuStody evidence unneceSSary for breathalyzer
certification
Another Illinois case that analyzed the Melendez-Diaz
case—in the context of DUI and the certication of the accu-
racy of the Breathalyzer machine—is People v. Jacobs, 405 Ill.
App. 3d 210 (2010). In that case, the appellate court pointed
out that Melendez-Diaz stated in a footnote that it “did not hold
‘that anyone whose testimony may be relevant in establishing
the chain of custody, authenticity of the sample, or accuracy
of the testing device, must appear in person as part of the
prosecution’s case.’” The court concluded that “the testimony
and logbooks provided in this case as to the certication of the
Breathalyzer were not testimonial and established a sufcient
foundation that it was regularly tested and accurate.”
For more on the Crawford decision and its holding con-
cerning a criminal defendant’s right to confrontation, see the
discussion of Williams v. Illinois in the Author’s Commentary
on Ill. R. Evid. 703 supra, and the discussion of Crawford and
its progeny in connection with various Illinois statutory hearsay
exceptions in the Author’s Commentary on the Non-Adoption
of Fed. R. Evid. 807, infra.
(9) Public Records of Vital Statistics. A record of
a birth, death, or marriage, if reported to a public oce
in accordance with a legal duty.
(9) Records of Vital Statistics. Facts contained in
records or data compilations, in any form, of births,
fetal deaths, deaths, or marriages, if the report thereof
was made to a public oce pursuant to requirements
of law.
Author’s Commentary on Ill. R. Evid. 803(9)
Except for the clarifying addition of the phrase “Facts con-
tained in” at the beginning of the rule, IRE 803(9) is identical
to FRE 803(9) before the latter’s amendment solely for stylistic
purposes effective December 1, 2011.
This codied rule should be considered together with the
provisions of the Vital Records Act, 410 ILCS 535/1 et seq. That
Act, similar to the subject matter addressed by the codied rule,
denes “vital records” as “records of births, death, fetal deaths,
marriages, dissolution of marriages, and data related thereto.”
It establishes in the Department of Public Health an Ofce of
Vital Records, which is responsible for installing, maintaining,
and operating the system of vital records throughout the State.
In addition to explaining the duties and responsibilities of the
Ofce of Vital Statistics and its director, the State Registrar of
Vital Records, the Act provides for the compilation of vital
records and the methods for the public to obtain desired
records.
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ARTICLE VIII. HEARSAY
RULE 803
(10) Absence of a Public Record. Testimony—or
a certication under Rule 902—that a diligent search
failed to disclose a public record or statement if:
(A) the testimony or certication is admitted to
prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public
oce regularly kept a record or statement for a
matter of that kind; and
(B) in a criminal case, a prosecutor who intends
to oer a certication provides written notice of that
intent at least 14 days before trial, and the defendant
does not object in writing within 7 days of receiving
the notice—unless the court sets a dierent time for
the notice or objection.
(10) Absence of Public Record or Entry. To prove
the absence of a record, report, statement, or data com-
pilation, in any form, or the nonoccurrence or nonexis-
tence of a matter of which a record, report, statement,
or data compilation, in any form, was regularly made
and preserved by a public oce or agency, evidence in
the form of a certication in accordance with Rule 902,
or testimony, that diligent search failed to disclose the
record, report, statement, or data compilation, or entry.
Author’s Commentary on Ill. R. Evid. 803(10)
IRE 803(10) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. Note, however, that with the December 1, 2011
amendments, the federal rule added subdivisions (A) and (B).
Then, effective December 1, 2013, another amendment to the
federal rule altered subdivisions (A) and (B), designating them
(i) and (ii) under subdivision (A) (FRE 803(10)(A)(i) and (ii)),
without altering substance. That amendment also added a new
provision in the subdivision designated as (B), FRE 803(10)
(B). The newly created federal subdivision (B), which does
not have a specic counterpart in the Illinois rule, allows a
prosecutor in a criminal case to submit a written certication of
the absence of a public record which, if not objected to by the
defense, satises the requirements of the rule. This “notice and
demand” procedure in the federal rule is designed to satisfy the
procedure referred to and seemingly approved by the United
States Supreme Court in Melendez-Diaz v. Massachusetts, 557
U.S. 305, 129 S. Ct. 2527, 2541 (2009).
Note that the reference in the rule to “a certication in
accordance with rule 902” (as well as the substantially identi-
cal phrase in the federal rule) refers to the procedures related to
the certication allowed by Rule 902(11).
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ARTICLE VIII. HEARSAY
(11) Records of Religious Organizations Con-
cerning Personal or Family History. A statement of
birth, legitimacy, ancestry, marriage, divorce, death,
relationship by blood or marriage, or similar facts of
personal or family history, contained in a regularly kept
record of a religious organization.
(11) Records of Religious Organizations. State-
ments of births, marriages, divorces, deaths, legitimacy,
ancestry, relationship by blood or marriage, or other
similar facts of personal or family history, contained in
a regularly kept record of a religious organization.
Author’s Commentary on Ill. R. Evid. 803(11)
IRE 803(11) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
(12) Certicates of Marriage, Baptism, and Sim-
ilar Ceremonies. A statement of fact contained in a
certicate:
(A) made by a person who is authorized by a
religious organization or by law to perform the act
certied;
(B) attesting that the person performed a
marriage or similar ceremony or administered a
sacrament; and
(C) purporting to have been issued at the time of
the act or within a reasonable time after it.
(12) Marriage, Baptismal, and Similar Certi-
cates. Statements of fact contained in a certicate that
the maker performed a marriage or other ceremony or
administered a sacrament, made by a clergyman, public
ocial, or other person authorized by the rules or prac-
tices of a religious organization or by law to perform the
act certied, and purporting to have been issued at the
time of the act or within a reasonable time thereafter.
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Author’s Commentary on Ill. R. Evid. 803(12)
IRE 803(12) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
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ARTICLE VIII. HEARSAY
RULE 803
(13) Family Records. A statement of fact about
personal or family history contained in a family record,
such as a Bible, genealogy, chart, engraving on a ring,
inscription on a portrait, or engraving on an urn or
burial marker.
(13) Family Records. Statements of fact concerning
personal or family history contained in family Bibles,
genealogies, charts, engravings on rings, inscriptions on
family portraits, engravings on urns, crypts, or tomb-
stones, or the like.
Author’s Commentary on Ill. R. Evid. 803(13)
IRE 803(13) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. This codication eliminates the prerequisites contained
in Sugrue v. Crilley, 329 Ill. 458 (1928), that the declarant be
unavailable (which would have required its placement in a Rule
804 hearsay exception) and that the statement be made before
the controversy or a motive to misrepresent arose. See section
(7) under the “Modernization” discussion in the Committee’s
general commentary on page 3 of this guide.
(14) Records of Documents at Aect an Interest
in Property. e record of a document that purports
to establish or aect an interest in property if:
(A) the record is admitted to prove the content
of the original recorded document, along with its
signing and its delivery by each person who purports
to have signed it;
(B) the record is kept in a public oce; and
(C) a statute authorizes recording documents of
that kind in that oce.
(14) Records of Documents Aecting an Interest
in Property. e record of a document purporting
to establish or aect an interest in property, as proof
of the content of the original recorded document and
its execution and delivery by each person by whom it
purports to have been executed, if the record is a record
of a public oce and an applicable statute authorizes
the recording of documents of that kind in that oce.
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COMMENTARY
Author’s Commentary on Ill. R. Evid. 803(14)
IRE 803(14) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See section (8) under the “Modernization” discussion in
the Committee’s general commentary on page 3 of this guide.
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264RULE 803
ARTICLE VIII. HEARSAY
(15) Statements in Documents at Aect an
Interest in Property. A statement contained in a doc-
ument that purports to establish or aect an interest in
property if the matter stated was relevant to the docu-
ment’s purpose—unless later dealings with the property
are inconsistent with the truth of the statement or the
purport of the document.
(15) Statements in Documents Aecting an Inter-
est in Property. A statement contained in a document
purporting to establish or aect an interest in property
if the matter stated was relevant to the purpose of the
document, unless dealings with the property since the
document was made have been inconsistent with the
truth of the statement or the purport of the document.
Author’s Commentary on Ill. R. Evid. 803(15)
IRE 803(15) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See section (8) under the “Modernization” discussion in
the Committee’s general commentary on page 3 of this guide.
(16) Statements in Ancient Documents. A state-
ment in a document that was prepared before January
1, 1998, and whose authenticity is established.
(16) Statements in Ancient Documents. State-
ments in a document that was prepared before January
1, 1998, and whose authenticity is established.
Author’s Commentary on Fed. R. Evid. 803(16)
Effective December 1, 2017, FRE 803(16) was signicantly
amended.
The amendment was initiated because the federal Advisory
Committee on Evidence Rules questioned the premise that the
mere authenticity of a document in existence 20 years or more
means that the assertions in the document are reliable. Initially,
the Committee recommended the abrogation of the federal rule.
That recommendation was based on the Committee’s stated
concern that electronically stored information (ESI), which
will be voluminous in the future and may not be reliable—and
which was not contemplated under the common law or when
the federal rule was codied—would be admissible under the
rule simply because it was in existence for 20 years or more. The
Committee reasoned that, though the age of such a document
might lead to the conclusion that the document is genuine, its
age does not ensure that its contents are truthful.
The Advisory Committee ultimately withdrew its recom-
mendation to abrogate the rule, and instead recommended
the current version as an amendment. That recommendation
was adopted by the Judicial Conference of the United States
and the United States Supreme Court, and became effective
on December 1, 2017. The amendment deletes the former
20-years-in-existence requirement and substitutes for it the
requirement that the document “was prepared before January
1, 1998.” The Committee conceded the arbitrariness of the
selected date in the amended rule, but concluded that “it is
a rational date for treating concerns about old and unreliable
ESI.”
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ARTICLE VIII. HEARSAY
RULE 803
Author’s Commentary on Ill. R. Evid. 803(16)
Effective September 28, 2018, the Illinois Supreme Court
amended IRE 803(16), resulting in a rule substantially iden-
tical to the December 1, 2017 amendment of FRE 803(16).
The rationale for the rule’s amendment was identical to what
prompted the federal rule’s amendment: the concern about this
hearsay exception resulting in the admission of a vast amount
of electronically stored information (ESI) simply because that
information may have been in existence for 20 years or more,
with the ease of establishing the authenticity of the existence
of the ESI, but without any assurance of the truthfulness of its
contents.
For the Illinois denition of “ESI,” see Illinois Supreme Court
Rule 201(b)(4), which reads:
“(4) Electronically Stored Information. (‘ESI’) shall
include any writings, drawings, graphs, charts,
photographs, sound recordings, images, and other
data or data compilations in any medium from
which electronically stored information can be
obtained either directly or, if necessary, after trans-
lation by the responding party into a reasonably
usable form.”
The pre-amended version of IRE 803(16) was identical
to the federal rule before the latter’s amendment solely for
stylistic purposes effective December 1, 2011, and before
the signicant substantive change to the federal rule effective
December 1, 2017. Its original codication—as well as the
current codication—eliminated the prior requirement that the
document be related to real property. Also, the “20 years” time
period provided for in the former rule represented a change
from previous Illinois common law, which required that the
document be in existence for 30 years. See section (9) under
the “Modernization” discussion in the Committee’s general
commentary on page 3 of this guide.
ire 803(16)’S relation to ire 901(b)(8)
Note that, by allowing admission of statements prepared
before January 1, 1998, the amended rule effectively preserves
the former 20-years-in-existence requirement. A statement in
a document prepared before 1998 necessarily exceeds the
former 20-year requirement. Thus, there was no need to amend
IRE 901(b)(8), a rule that furnishes a method (but not the only
method) for authenticating statements in ancient documents.
Aside from the looming problem concerning the volume of
electronically stored information, IRE 803(16) was and is pre-
mised on the belief that the authentication requirements in IRE
901(b)(8)(A) and (B) minimize the danger of mistake, as well as
the belief that the time requirement of IRE 901(b)(8)(C) offers
assurance that the writing antedates the present controversy.
mCCUlloUgh: application of ire 803(16)
The pre-amendment decision in People v. McCullough,
2015 IL App (2d) 121364, ¶¶ 105-12, provides a relevant
discussion of the reliability aspects of this “ancient documents”
exception to the hearsay rule. In McCullough, the defendant
was charged with the kidnapping and murder of a seven-year
old girl more than 50 years after the offenses. During trial, the
defendant sought the admission of FBI reports that contained
exculpatory information. He relied on the age of the reports,
pointing out the age of the case and the inability to obtain other
contemporary evidence. The trial court denied his motion to
admit the reports. On appeal, the appellate court cited this
evidence rule as well as its pre-amended federal counterpart
and acknowledged that the age requirement of the reports was
satised. Noting, however, that the reports were prepared by
FBI agents who had no personal knowledge of the substance of
the underlying assertions, the court pointed out that “[t]he FBI
reports at issue here present the problem of multiple hearsay.”
McCullough, at ¶ 109. Confronting the issue of whether multi-
ple layers of otherwise inadmissible hearsay may be admitted
under this rule, the court concluded that:
“the better view is that each layer of hearsay con-
tained in an ancient document must be excused by
its own hearsay exception. This is the view adopted
by our own Seventh Circuit in United States v.
Hajda, 135 F. 3d 439, 444 (7th Cir. 1998) (the
admissibility exception applies only to the docu-
ment itself; if a document contains more than one
level of hearsay, an appropriate exception must be
found for each level). The court in Hajda found
this to be consistent with Federal Rule of Evidence
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266RULE 803
ARTICLE VIII. HEARSAY
(17) Market Reports and Similar Commercial
Publications. Market quotations, lists, directories, or
other compilations that are generally relied on by the
public or by persons in particular occupations.
(17) Market Reports, Commercial Publica-
tions. Market quotations, tabulations, lists, directories,
or other published compilations, generally used and
relied upon by the public or by persons in particular
occupations.
Author’s Commentary on Ill. R. Evid. 803(17)
IRE 803(17) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
Section 2-724 of the Uniform Commercial Code (810 ILCS
5/2-724) provides for the statutory admissibility of market
quotations:
“Whenever the prevailing price or value of any
goods regularly bought and sold in any established
commodity market is in issue, reports in ofcial
publications or trade journals or in newspapers
or periodicals of general circulation published as
the reports of such market shall be admissible in
evidence. The circumstances of the publication of
such a report may be shown to affect its weight but
not its admissibility.”
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COMMENTARY
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805, which provides that hearsay included within
hearsay is not excluded under the hearsay rule if
each part of the combined statements conforms to
an exception. Illinois Rule of Evidence 805 (eff.
January 1, 2011) is identical. If we were to read
Rule 803(16) as inoculating multiple levels of hear-
say, Rule 805 would be superuous. [Citation.] In
other words, ordinarily Rule 803(16) applies only
where the declarant is the author of the ancient
document.“ McCullough, at ¶ 110.
Although there is room for debate as to the correctness of
McCullough’s holding on this issue, there is no doubt that the
court was properly concerned about the shortcomings of the
ancient document rule.
As a postscript to McCullough, note that, after the appellate
court afrmed McCullough’s conviction for murder, in early
2016 a new State’s Attorney announced that his investigation
showed that McCullough could not have committed the crime.
When the State’s Attorney agreed that the conviction should be
overturned, the circuit court released McCullough from cus-
tody, vacated the conviction, and dismissed the case without
prejudice.
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ARTICLE VIII. HEARSAY
RULE 803
(18) Statements in Learned Treatises, Periodicals,
or Pamphlets. A statement contained in a treatise,
periodical, or pamphlet if:
(A) the statement is called to the attention of an
expert witness on cross-examination or relied on by
the expert on direct examination; and
(B) the publication is established as a reliable
authority by the expert’s admission or testimony, by
another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence
but not received as an exhibit.
(18) Reserved. [Learned Treatises]
Author’s Commentary on the Reservation of Ill. R. Evid. 803(18)
IRE 803(18) was reserved because the adoption of FRE
803(18) would have represented a substantive change in
Illinois law. Illinois common law is consistent in its rejection
of this hearsay exception. Learned-treatise evidence therefore
is not admitted substantively. Although not admitted to prove
the truth of the matter asserted, such evidence is allowed for
impeachment purposes on cross-examination, usually with
limiting instructions.
During its public hearing in Chicago in May 2010, the
Committee was informed that trial courts throughout the State
differ radically in their treatment of learned-treatise evidence
on direct examination. Although trial courts uniformly do not
allow learned-treatise evidence to be admitted substantively
in direct examination, the Committee was told that there is
no uniformity concerning whether a learned treatise might
be referred to at all on direct examination; whether a learned
treatise could be referred to as data or information relied upon
by an expert, with or without quotes from the treatise; whether
the contents of a learned treatise may be disclosed to the jury;
and whether jurors are allowed to review a learned treatise in
instances where the court has allowed some evidence about it.
Trial courts that prohibit admissibility on direct examination
do so on the basis that Illinois has not accepted the learned
treatise exception to the hearsay rule, and that information
garnered from such treatises are therefore hearsay and not
substantively admissible. On the other hand, trial courts that
allow admission of evidence related to learned treatises on
direct examination do so pursuant to Rule 703, which allows
admission of facts or data reasonably relied upon by experts
even though they are not substantively admissible. These courts
give limiting instructions to the jury to explain the non-substan-
tive and proper application of the evidence.
As noted below, the Illinois Supreme Court has denitively
approved the use of learned treatises on cross-examination
for impeachment, but not for substantive purposes. The
requirement to allow cross-examination on learned treatises is
consistent with the holding of the United States Supreme Court
in Reilly v. Pickens, 338 U.S. 269, 70 S. Ct. 110 (1949), where
the Court reasoned:
“It has been pointed out that the doctors’ expert
evidence rested on their general professional
knowledge. To some extent this knowledge was
acquired from medical text books and publica-
tions, on which these experts placed reliance. In
cross-examination respondent sought to question
these witnesses concerning statements in other
medical books, some of which at least were shown
to be respectable authorities. The questions were
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268RULE 803
ARTICLE VIII. HEARSAY
not permitted. We think this was an undue restric-
tion on the right to cross-examine. It certainly is
illogical, if not actually unfair, to permit witnesses
to give expert opinions based on book knowledge,
and then deprive the party challenging such evi-
dence of all opportunity to interrogate them about
divergent opinions expressed in other reputable
books.”
Note that redirect examination on a learned treatise after a
cross-examination does not convert the statements in the trea-
tise to substantive evidence. Illustrative is McKinney v. Hobart
Brothers Company, 2018 IL App (4th) 170333, where plaintiff
cross-examined defendant’s corporate representative based on
“the Compton studies.” The defendant objected on the basis
of hearsay, but plaintiff responded that he was not offering the
study substantively but merely to impeach the witness. On
redirect, defendant questioned the witness in more detail about
the studies, intending to expose their aws and unreliability.
Defendant even displayed pages from the studies on a large
screen. Because defendant had displayed or “published” the
studies to the jury on redirect examination, the trial court agreed
with plaintiff that the studies should be admitted in evidence
and sent them to the jury during its deliberations. In reversing
the judgment for plaintiff and holding that the trial court’s
ruling was erroneous, the appellate court held that defendant
was entitled “to attempt to neutralize the impeachment without
transforming the Compton studies into substantive evidence.”
McKinney, at ¶ 51. The court reasoned that “[t]he redirect
examination did not forfeit the hearsay objection and did not
make the Compton studies admissible as substantive.” Id. at
¶ 53.
Following are summaries of Illinois Supreme Court cases (in
chronological order) and a few Illinois Appellate Court cases
(also in chronological order) that are relevant to what Illinois
courts of review have held on the issue of learned treatises.
A review of these cases may bring perspective to the status
of such evidence in Illinois, and may help explain the lack of
uniformity in dealing with learned-treatise evidence on direct
examination.
Supreme court deciSionS
In Darling v. Charleston Community Memorial Hospital,
33 Ill. 2d 326 (1965), the supreme court approved the use of
learned treatises in the cross-examination of expert witnesses
for impeachment purposes, even where experts did not purport
to base their opinions on such authorities. Because the issue
was not before it, the court did not address whether an expert
could testify about reliance on a learned treatise in direct
examination.
In Lawson v. G.D. Searle & Co., 64 Ill. 2d 543, 557 (1976),
the supreme court approved of an expert basing his opinion on
“a detailed study of all the clinical studies that have been pub-
lished in the literature.” Without stating the signicance of the
observation, the court noted that the expert “did not mention
the reports by name, nor did he recite the empirical data drawn
from the reports or the conclusions of the researchers.”
In Walski v. Tiesanga, 72 Ill. 2d 249 (1978), the supreme
court noted that learned treatises are not admissible as sub-
stantive evidence in Illinois and, because the plaintiff had not
sought to admit the treatise as substantive evidence, it refused
to consider whether a learned treatise used to cross-examine
the defendant doctor who recognized the treatise as an author-
ity, should have been admitted substantively.
In People v. Anderson, 113 Ill. 2d 1 (1986), in a criminal
case involving the insanity defense, the supreme court held that
facts and data from other sources, such as psychiatrists, doctors
and counselors, if reasonably relied upon by experts in forming
opinions, although not admissible as substantive evidence,
could be disclosed to the jury. The court held that “expert
witnesses may disclose the contents of otherwise inadmissible
materials upon which they reasonably rely.” Anderson, 113 Ill.
2d at 9. The court went on to state:
“To prevent the expert from referring to the contents
of materials upon which he relied in arriving at his
conclusion ‘places an unreal stricture on him and
compels him to be not only less than frank with
the jury but also *** to appear to base his diagnosis
upon reasons which are imsy and inconclusive
when in fact they may not be.’ [Citation.] Absent a
full explanation of the expert’s reasons, including
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ARTICLE VIII. HEARSAY
RULE 803
underlying facts and opinion, the jury has no way
of evaluating the expert testimony [citation] and is
therefore faced with a ‘meaningless conclusion’ by
the witness [citation].” Id. at 10-11.
In Anderson, because the hearsay statements relied upon
by the expert were not from learned treatises, the court did
not explicitly address the issue of the admissibility of learned
treatises under Rule 703.
In Roach v. Springeld Clinic, 157 Ill. 2d 29 (1993), the
supreme court refused to consider whether FRE 803(18) should
be adopted and thus learned treatises should be given substan-
tive admissibility because, as in Walski, the issue had not been
properly preserved in the trial court.
appellate court deciSionS
In Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d
42 (1984), citing and relying upon other appellate court cases
that refused to allow learned treatises as substantive evidence,
the appellate court approved the trial court’s refusal to allow
an expert witness to read from his notes about the subject of
treatises or to read from the treatises themselves. This case
provides the foundation for the general principle that, in direct
examination, experts may not quote from learned treatises or
summarize ndings of studies contained within them.
The appellate court case of Schuchman v. Stackable, 198
Ill. App. 3d 209 (1990), is worthy of note because it applied
the holding in Mielke, but even more for the dissenting judge’s
views on why the supreme court’s holding in Anderson
implicitly overruled the holding in Mielke and why, in his view,
Mielke was wrongly decided.
See also Kochan v. Owens-Corning Fiberglass Corp., 242
Ill. App. 3d 781 (1993) (recognizing that “this area of the
law is evolving toward more openness in the presentation of
evidence,” but refusing “to go as far” as the dissenting judge in
Schuchman, while approving the admission of articles based
on its conclusion that the literature was not used to support
or bolster the expert’s opinion, but rather as the underlying
facts for the expert’s opinion). See also Prairie v. Snow Valley
Health Resources, Inc., 324 Ill. App. 3d 1021 (2001) (holding
it was error, justifying in part the trial court’s grant of a new
trial, for defendant to provide evidence from its expert about a
statement in a medical treatise that was consistent with defen-
dant’s theory and contradicted what plaintiff’s expert had said
about the statement in his discovery deposition, when plaintiff’s
expert admitted at trial that he had erred in testifying at the
deposition that the treatise supported his opinion, because
the testimony of defendant’s expert was not impeaching of the
plaintiff’s expert’s testimony at trial and could not be admitted
for substantive purposes).
The appellate court decision in Sharbono v. Hilborn, 2014
IL App (3d) 120597 (as modied upon denial of rehearing), is
noteworthy for its observation that a learned treatise may be used
on direct examination, under the holding in Wilson v. Clark, 84
Ill. 2d 186 (1981), and under IRE 703, “if a proper foundation
has been established and if there has been proper disclosure.”
Sharbono, at ¶ 35. In a footnote, the appellate court also noted
that the rulings of the supreme court in People v. Anderson,
113 Ill. 2d 1, 9-12 (1986), and in People v. Pasch, 152 Ill. 2d
133, 176 (1992), “albeit in cases that did not involve the use of
a learned treatise,” seemed to indicate that a party could prop-
erly bring out the bases for its medical opinion through the use
of a learned treatise on direct examination. Sharbono, at note
4. The Sharbono court ultimately held, however, that the use of
the learned treatise in that case was improper because a proper
foundation for its use had not been established since there was
no proof that the treatise was a reliable authority, and because
there had not been proper pretrial disclosure concerning the
use of the treatise. Sharbono, at ¶¶ 34-37.
Also noteworthy is the appellate court decision in
Fragogiannis v. Sisters of St. Francis Health Center, Inc., 2015 IL
App (1st) 141788. In that case, in stressing the authoritativeness
of a manual later used in cross-examination by the plaintiff, the
appellate court said this:
“On direct examination, plaintiff’s expert, Dr.
Sobel, testied about the Manual, not for the truth
of the matters asserted therein, but to explain
that he considered the Manual in arriving at
his opinions. Dr. Sobel further testied that the
authors were recognized authorities in the eld
of emergency medicine and that the Manual is
‘highly regarded’ and the ‘most comprehensive
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ARTICLE VIII. HEARSAY
source there is’ dealing with emergency airway
management.” Fragogiannis, at ¶ 28.
Having pointed out this use of an authoritative manual on
direct examination, the appellate court addressed the use of
the manual on cross-examination. Reasoning that “there is no
blanket prohibition on an attorney reading the text of an author-
itative treatise on cross-examination” (id. at ¶ 29), the appellate
court held that it was not improper for plaintiff’s counsel to
read from a treatise favorable to plaintiff on cross-examination,
and to question defense witnesses (the defendant physician and
two defense-physician experts) “relatively extensively” about
its contents. (id. at ¶ 9). The witnesses were questioned “by
reading them sections of the book and asking the witnesses
whether they agreed with the contents.” (Id.) The appellate
court reasoned that the defense had pretrial notice of the
plaintiff’s use of the treatise, and the defendant’s “witnesses had
every opportunity to explain why the book did not discredit
their expert opinions in the case and to reiterate why their
positions correctly reected the standard of care and that it was
complied with.” Id. at ¶ 32. Perhaps taking into account the use
of the manual on direct examination (which was not an issue
addressed by the court, except to point out that it established
the authoritativeness of the manual), the appellate court made
this observation:
“Even if defendants could have somehow shown
that the trial court committed error, a party is
not entitled to reversal based on an erroneous
evidentiary ruling unless the error substantially
prejudiced the aggrieved party and affected the
outcome of the case, and the party seeking rever-
sal bears the burden of establishing prejudice.” Id.
eStabliShing that a treatiSe iS authoritative
In cases where reference to a learned treatise have been
upheld, the appellate court has held that a treatise may be
qualied as authoritative through the trial court’s taking judicial
notice of the fact, or through the witness’s conceding or an
expert witness’s testifying that the treatise is authoritative. In
like fashion, in Stapleton v. Moore, 403 Ill. App. 3d 147 (2010),
the appellate court cited numerous decisions in holding that a
treatise’s authoritativeness may be based upon the competency
of the author through the trial court’s taking judicial notice of
the author’s competence, the witness’s conceding the author’s
competence, or the cross-examiner’s proving the author’s
competence by a witness with expertise in the subject matter.
COMMENTARY CONTINUED
271
ARTICLE VIII. HEARSAY
RULE 803
(19) Reputation Concerning Personal or Family
History. A reputation among a person’s family by
blood, adoption, or marriage—or among a person’s
associates or in the community—concerning the per-
son’s birth, adoption, legitimacy, ancestry, marriage,
divorce, death, relationship by blood, adoption, or
marriage, or similar facts of personal or family history.
(19) Reputation Concerning Personal or Family
History. Reputation among members of a person’s
family by blood, adoption, or marriage, or among a
person’s associates, or in the community, concerning a
person’s birth, adoption, marriage, divorce, death, legit-
imacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or family
history.
Author’s Commentary on Ill. R. Evid. 803(19)
IRE 803(19) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See section (8) under the “Modernization” discussion in
the Committee’s general commentary on page 3 of this guide.
This rule allows reputation evidence among a person’s fam-
ily or among a person’s associates or in the community about
the personal or family history of that person. It differs from IRE
804(b)(4), which is a hearsay exception involving: (1) under IRE
804(b)(4)(A), an unavailable declarant’s statement about his or
her own personal or family history—including some matters
about which the declarant could not have personal knowledge,
such as his or her own birth; or (2) under IRE 804(b)(4)(B), an
unavailable declarant’s statement about the personal or family
history of another person (including that person’s death) where
the declarant was related to or intimately associated with the
other person’s family.
(20) Reputation Concerning Boundaries or Gen-
eral History. A reputation in a community—arising
before the controversy—concerning boundaries of land
in the community or customs that aect the land, or
concerning general historical events important to that
community, state, or nation.
(20) Reputation Concerning Boundaries or
General History. Reputation in a community, arising
before the controversy, as to boundaries of or customs
aecting lands in the community, and reputation as to
events of general history important to the community
or State or nation in which located.
Author’s Commentary on Ill. R. Evid. 803(20)
IRE 803(20), like IRE 803(19) and IRE 803(21) which
are premised on evidence of reputation, is identical to the
federal rule before the latter’s amendment solely for stylistic
purposes effective December 1, 2011. See section (8) under
the “Modernization” discussion in the Committee’s general
commentary on page 3 of this guide.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY
272RULE 803
ARTICLE VIII. HEARSAY
(21) Reputation Concerning Character. A reputa-
tion among a person’s associates or in the community
concerning the person’s character.
(21) Reputation as to Character. Reputation
of a person’s character among associates or in the
community.
Author’s Commentary on Ill. R. Evid. 803(21)
IRE 803(21) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. This rule, like the common law before its codication,
permits, as an exception to the hearsay rule, “reputation”
testimony (i.e., what people say about a person) concerning a
person’s character.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
(22) Judgment of a Previous Conviction. Evi-
dence of a nal judgment of conviction if:
(A) the judgment was entered after a trial or
guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by
death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact
essential to the judgment; and
(D) when oered by the prosecutor in a criminal
case for a purpose other than impeachment, the
judgment was against the defendant.
e pendency of an appeal may be shown but does
not aect admissibility.
(22) Judgment of Previous Conviction. Evidence
of a nal judgment, entered after a trial or upon a plea
of guilty, adjudging a person guilty of a crime punish-
able by death or imprisonment in excess of one year, to
prove any fact essential to sustain the judgment, but not
including, when oered by the Government in a crim-
inal prosecution for purposes other than impeachment,
judgments against persons other than the accused. e
pendency of an appeal may be shown but does not
aect admissibility.
Author’s Commentary on Ill. R. Evid. 803(22)
Except for the non-adoption of the parenthetical “(but
not upon a plea of nolo contendere)” which was in the pre-
amended federal rule and is now incorporated in FRE 803(22)
(A), IRE 803(22) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The non-adoption of the exclusion for the plea of nolo
contendere in the Illinois rule means that such pleas are subject
to the hearsay exception provided by the rule.
For a case relevant to the rule, see American Family Mutual
Ins. Co. v. Savickas, 193 Ill. 2d 378 (2000). There, the supreme
court held that collateral estoppel barred recovery from an
insurer for wrongful death and survivor actions based on
negligence, where the insurance policy excluded coverage
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
273
ARTICLE VIII. HEARSAY
RULE 803
(23) Judgments Involving Personal, Family, or
General History, or a Boundary. A judgment that
is admitted to prove a matter of personal, family, or
general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
(23) Judgment as to Personal, Family or General
History, or Boundaries. Judgments as proof of mat-
ters of personal, family or general history, or bound-
aries, essential to the judgment, if the same would be
provable by evidence of reputation.
Author’s Commentary on Ill. R. Evid. 803(23)
IRE 803(23) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. See section (8) under the “Modernization” discussion in
the Committee’s general commentary on page 3 of this guide.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY CONTINUED
for bodily injury “expected or intended by any insured,” and
the insured had been convicted of rst degree murder. In so
holding, the supreme court abrogated the holding in Thornton
v. Paul, 74 Ill. 2d 132 (1978), which had held that a conviction
constituted only prima facie evidence, which had the effect
of preserving the opportunity to rebut the factual basis of the
conviction insofar as those facts were applicable to a civil
proceeding. The supreme court adopted instead the “modern
trend” that a criminal conviction acts as a bar and collaterally
estops the retrial of issues in a later civil trial that were litigated
in the criminal trial.
In In re Estate of Marjorie Ivy, 2019 IL App (1st) 181691,
however, the appellate court distinguished the decision in
Savickas. There, the respondent had been found not guilty of
the rst degree murder of the decedent by reason of insanity
(NGRI). The issue addressed by the appellate court was whether
the trial court had properly entered summary judgment against
the respondent based on the prohibition in the Probate Act’s
“Slayer Statute” (755 ILCS 5/2-6), which provides that a “person
who intentionally and unjustiably causes the death of another”
shall not receive property from the decedent’s estate. Pointing
out that the NGRI determination in the criminal proceedings
did not determine whether the respondent intentionally and
unjustiably caused the death of the decedent, the appellate
court held that the doctrine of collateral estoppel did not apply,
and thus the summary judgment order was improperly entered.
Note that the rule makes admissible, as an exception to
the hearsay rule, evidence of previous convictions. It does not
address whether such convictions should be given preclusive
effect in subsequent litigation. From the holding in Savikas, it
appears that the general rule in Illinois is that a conviction is
given preclusive effect. In Wells v. Coker, 707 F.3d 756 (7th Cir.
2013), however, the Seventh Circuit discussed what it referred
to as Illinois’ inconsistent general practice regarding preclu-
sion in convictions based upon pleas of guilty. The court thus
held that the entry of summary judgment was erroneous and
remanded the case to give the plaintiff-appellant “an oppor-
tunity to contest or otherwise explain the facts that underlie
his guilty plea.” Wells, 707 F.3d at 764. It should be noted,
however, that the Wells court cited only post-Thornton v. Paul
decisions but no post-Savikas decisions.
274RULE 803
ARTICLE VIII. HEARSAY
(24) [Other Exceptions.] [Transferred to Rule
807.]
(24) Receipt or Paid Bill. A receipt or paid bill
as prima facie evidence of the fact of payment and as
prima facie evidence that the charge was reasonable.
Author’s Commentary on Ill. R. Evid. 803(24)
Former FRE 803(24), which was entitled “Other Exceptions,”
has been transferred to FRE 807, which is entitled “Residual
Exception.” IRE 803(24) has no counterpart in the federal
rules. The Illinois rule is adopted to codify Illinois common
law. See Arthur v. Catour, 216 Ill. 2d 72, 82 (2005) (“When
evidence is admitted, through testimony or otherwise, that a
medical bill was for treatment rendered and that the bill has
been paid, the bill is prima facie reasonable.”). See also Wills v.
Foster, 229 Ill. 2d 393 (2008) (clarifying the holding in Arthur
and adopting the “reasonable-value approach,” not the “ben-
et-of-the-bargain approach;” and holding that “defendants
are free to cross-examine any witnesses that a plaintiff might
call to establish reasonableness, and the defense is also free to
call its own witnesses to testify that the billed amounts do not
reect the reasonable value of the services. Defendants may
not, however, introduce evidence that the plaintiff’s bills were
settled for a lesser amount because to do so would undermine
the collateral source rule.”).
See Klesowitch v. Smith, 2016 IL App (1st) 150414, for a
discussion of Arthur and Willis, and its holding that the “trial
court improperly admitted the written-off or settled portion
of plaintiff’s medical bills into evidence and the jury awarded
damages based on the improperly admitted medical bills.”
Id. at ¶ 47. The remedy imposed by the appellate court was
a remand for remittitur, and in the absence of consent to
remittitur by the plaintiff, reversal and remand for new trial.
See also Verci v. High, 2019 IL App (3d) 190106-B (applying
Arthur and Wills in holding that the trial court erred in not
allowing defendant to cross-examine the owner of medical
services concerning its advertised cash prices for medical
services, and in allowing defendant’s billing expert to testify
concerning what other area medical providers charged for
their services where such testimony was based not on infor-
mation from medical providers but from insurance companies
which used the information to set reimbursement rates and
not to determine the reasonableness of medical services).
In People v. Coleman, 2014 IL App (5th) 110274, ¶¶ 155-59,
where the defendant was convicted of murdering his wife and
two sons and spray paint was on the walls of the home where
the murders occurred, the appellate court held that a hardware
store receipt, which showed that spray paint had been purchased
with a charge card found in the home, was properly admitted
into evidence under this exception to the hearsay rule. The court
rejected the defendant’s argument that this exception applied
only to medical bills to show that the bill was reasonable.
In Stanford v. City of Flora, 2018 IL App (5th) 160115,
quoting the parenthetical provided in connection with Arthur
in the rst part of this commentary, the appellate court held
that, in not awarding medical expenses, the jury’s verdict was
against the manifest weight of the evidence. The appellate court
provided the following principles related to the admission of a
paid bill into evidence:
“The defendant may rebut the prima facie reason-
ableness of a medical expense by presenting proper
evidence casting doubt on the transaction. Baker
v. Hutson, 333 Ill. App. 3d 486, 494 (2002). The
proponent’s offering of a paid bill or the testimony
of a witness that a bill is fair and reasonable simply
satises the requirement to prove reasonableness.
Baker, 333 Ill. App. 3d at 494. The proponent must
also present evidence that the costs were incurred
as a result of the defendant’s negligence. Baker,
333 Ill. App. 3d at 494. Furthermore, satisfying the
minimum requirements for the admission of a bill
ILLINOIS RULES OF EVIDENCE
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ARTICLE VIII. HEARSAY
RULE 803
into evidence does not conclusively establish that
the entire amount of the bill must be awarded to
the plaintiff. Baker, 333 Ill. App. 3d at 494. The
admission of a bill into evidence merely allows the
jury to consider whether to award none, part, or all
of the bill as damages. Baker, 333 Ill. App. 3d at
494.” Stanford, at ¶ 30.
COMMENTARY CONTINUED
276RULE 804
ARTICLE VIII. HEARSAY
Rule 804. Exceptions to the Rule Against Hearsay—
When the Declarant Is Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject
matter of the declarant’s statement because the court
rules that a privilege applies;
(2) refuses to testify about the subject matter
despite a court order to do so;
(3) testies to not remembering the subject
matter;
(4) cannot be present or testify at the trial or
hearing because of death or a then-existing inrmity,
physical illness, or mental illness; or
(5) is absent from the trial or hearing and the
statement’s proponent has not been able, by process
or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a
hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in
the case of a hearsay exception under Rule 804(b)
(2), (3), or (4).
But this subdivision (a) does not apply if the state-
ment’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent
the declarant from attending or testifying.
Rule 804. Hearsay Exceptions; Declarant
Unavailable
(a) Denition of Unavailability. “Unavailability as
a witness” includes situations in which the declarant—
(1) is exempted by ruling of the court on the
ground of privilege from testifying concerning the
subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning the
subject matter of the declarant’s statement despite an
order of the court to do so; or
(3) testies to a lack of memory of the subject
matter of the declarant’s statement; or
(4) is unable to be present or to testify at the
hearing because of death or then existing physical or
mental illness or inrmity; or
(5) is absent from the hearing and the propo-
nent of a statement has been unable to procure the
declarant’s attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), the
declarant’s attendance or testimony) by process or
other reasonable means.
A declarant is not unavailable as a witness if exemp-
tion, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing
the witness from attending or testifying.
Author’s Commentary on Ill. R. Evid. 804(a)
At the outset, note that under the 803 rules, whether the
declarant is available or unavailable is not relevant in determin-
ing admissibility. In contrast, the 804 rules require the unavail-
ability of the declarant. If the declarant is unavailable and the
standards specied by the 804 rules are met, a hearsay excep-
tion is applied and the evidence is admitted substantively. IRE
804(a), like its federal counterpart, provides the denitions of
unavailability, and is identical to FRE 804(a) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
In People v. Wright, 2017 IL 119561, ¶ 81, noting that
“Rule 804(a)(1) specically provides that a witness’s exercise
of a privilege satises the requirement of unavailability,” the
supreme court held that “a declarant who properly asserts his
fth amendment right not to testify is unavailable for purposes
of the rule.” The court cited its pre-codication decision in
People v. Caffey, 205 Ill. 2d 52 (2001), where it had held that a
ILLINOIS RULES OF EVIDENCE
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277
ARTICLE VIII. HEARSAY
RULE 804
(b) e Exceptions. e following are not excluded
by the rule against hearsay if the declarant is unavailable
as a witness:
(b) Hearsay Exceptions. e following are not
excluded by the hearsay rule if the declarant is unavail-
able as a witness:
witness’s invocation of a privilege satised the requirement of
unavailability, and also noted that, although it had not “adopted
Rule 804(a) as an exhaustive denition of ‘unavailability’ under
Illinois law,” it had “embraced the general principles reected
therein.”
In People v. Garcia, 2012 IL App (2d) 100656, the appellate
court quoted and relied on the rule’s provisions concerning
“unavailability” in afrming the trial court’s ruling that denied
admissibility of the plea of guilty for the offense of cocaine
possession by the passenger in the defendant’s truck, where
the State’s theory was that the defendant and his passenger
jointly possessed the cocaine and the defendant sought admis-
sibility of the passenger’s plea of guilty as a statement against
interest under IRE 804(b)(3), the appellate court held that the
passenger’s plea of guilty was not inconsistent with his having
joint possession of the cocaine with the defendant and that
the defendant had failed to show the existence of any of the
bases provided by IRE 804(a) for establishing the passenger’s
unavailability.
Author’s Commentary on Ill. R. Evid. 804(b)
IRE 804(b) is identical to FRE 804(b) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. Note that there are a number of Illinois statutes in the
Code of Criminal Procedure of 1963 that provide exceptions
for hearsay statements (or, depending on statutory language,
confer not-hearsay status on out-of-court statements) of absent
witnesses in criminal cases but are not listed in IRE 804. These
statutory provisions supplement the well accepted hearsay
exceptions addressed in the various subdivisions of IRE 804(b).
Because of the decision in Crawford v. Washington, 541 U.S.
36 (2004), however, the constitutional validity of many of
them is questionable. They might be referred to as residual
exceptions, and are discussed in the Author’s Commentary on
Non-Adoption of Fed. R. Evid. 807, infra. They include: sec-
tion 115-10, hearsay exceptions related to specied offenses
committed on children under 13 years of age or on mentally
retarded persons (725 ILCS 5/115-10; see Appendix U); section
115-10.2, non-hearsay when a person refuses to testify despite
a court order to do so if the prior statements were made under
oath and were subject to cross-examination by the opposing
party in a prior trial, hearing, or other proceeding (725 ILCS
5/115-10.2; see Appendix O); section 115-10-2a, non-hearsay
of prior statements in domestic violence prosecutions when the
witness is unavailable (725 ILCS 5/115-10.2a; see Appendix
P); section 115-10.3, hearsay exception involving elder adults
suffering from mental or physical disability who are victims
of specied offenses (725 ILCS 5/115-10.3; see Appendix Q);
section 115-10.4, non-hearsay when the witness, who has
testied under oath regarding a material fact and was subject
to cross-examination, is deceased (725 ILCS 5/115-10.4; see
Appendix R).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY CONTINUED
278RULE 804
ARTICLE VIII. HEARSAY
Author’s Commentary on Ill. R. Evid. 804(b)(1)
IRE 804(b)(1)(A) is identical to FRE 804(b)(1) before the lat-
ter’s amendment solely for stylistic purposes effective December
1, 2011, except for the change in the phrase “in a deposition”
(referred to as “lawful deposition” in the current federal rule in
FRE 804(b)(1)(A)) to “in an evidence deposition” in the Illinois
rule. This was done, and subdivision (B) was added to the
Illinois rule because in Illinois, unlike in the federal system,
discovery depositions are not admissible except in very limited
circumstances, which includes discovery depositions of an IRE
801(d)(2) witness and, under Supreme Court Rule 212(a)(2), a
party-opponent and, as indicated by subdivision (B), by a rule
such as Supreme Court Rule 212(a)(5), which allows admission
at trial of the discovery deposition of a deponent who is unable
to attend the trial because of death or inrmity and who is not
a controlled expert witness.
ire 804(b)(1) and amended Supreme court rule 212(a)(5)
Note that the supreme court amended Rule 212(a)(5), effec-
tive January 1, 2011, by retaining the exclusion of a controlled
expert’s discovery deposition, while deleting the prior exclusion
of a party’s discovery deposition. The effect of the amendment
is to make admissible, in addition to the admissibility of the dis-
covery deposition of a mere unavailable witness as described
above, the discovery deposition of an unavailable party (even
one who is the proponent of admissibility and not a party-op-
ponent), where the witness or the party is unavailable due to
death or inrmity. But note that the Committee Comments to
the rule state that, as applied to a party’s discovery deposition,
the amendment “applies to cases led on or after the effective
date” of January 1, 2011, and that it refers to “rare, but com-
pelling circumstances” where it should be permitted and that
“it is expected that the circumstances that would justify use
of a discovery deposition would be extremely limited.” Note,
too, that the discovery deposition testimony of an absent or
deceased (or even an available) party opponent is admissible
(under IRE 801(d)(2) and under Supreme Court Rule 212(a)(2)),
and was admissible even before these codied rules and the
amendment to Rule 212(a)(5). See In re Estate of Rennick, 181
Ill. 2d 395 (1998).
StatuteS that are duplicative of ire 804(b)(1)
Section 115-10.2 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115-10.2; provided at Appendix P) allows
admissibility of a witness’s prior statements when the witness
refuses to testify despite having been ordered by the court to
do so. As worded—before the U.S. Supreme Court’s decision
in Crawford v. Washington, 541 U.S. 36 (2004)—the statute
allowed the admission of a witness’s prior statements, even
those that had not been given under oath and had not been
subject to cross-examination, based on the witness’s refusal
COMMENTARY
(b)(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing,
or lawful deposition, whether given during the
current proceeding or a dierent one; and
(B) is now oered against a party who had—or,
in a civil case, whose predecessor in interest had—
an opportunity and similar motive to develop it
by direct, cross-, or redirect examination.
(b)(1) Former Testimony. Testimony given as
a witness (A) at another hearing of the same or a
dierent proceeding, or in an evidence deposition
taken in compliance with law in the course of the
same or another proceeding, if the party against
whom the testimony is now oered, or, in a civil
action or proceeding, a predecessor in interest, had
an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination,
or (B) in a discovery deposition as provided for in
Supreme Court Rule 212(a)(5).
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279
ARTICLE VIII. HEARSAY
RULE 804
to comply with the court’s order to testify. Because refusal to
testify renders the witness unavailable (see section 115-10.2(c)
and IRE 804(a)(2)), the statute effectively expanded the com-
mon law former-testimony rule (as well as the now-codied
former-testimony rule at IRE 804(b)(1)), but it would have
violated Crawford’s application of the confrontation clause.
That problem was remedied, however, by Public Act 94-53,
effective June 17, 2005, which added subdivision (f) to the
statute and which states: “Prior statements are admissible under
this Section only if the statements were made under oath and
were subject to cross-examination by the adverse party in a
prior trial, hearing, or other proceeding.” That addition makes
the statute duplicative of IRE 804(b)(1).
Section 115-10.4 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115-10.4; provided at Appendix R), which
allows the admission of prior statements when the witness is
deceased, is another statute that was affected by Crawford.
Public Act 94-53 added language to the statute’s subdivision
(d), which already required that the prior statement sought
to be admitted must have been made under oath at a trial,
hearing, or other proceeding. The added language requires that
the statement must have “been subject to cross-examination
by the adverse party.” That amendment also makes the statute
duplicative of IRE 804(b)(1).
PeoPle v. torres: prerequiSiteS for admiSSibility of former
teStimony
The former-testimony exception to the hearsay rule is
often invoked by the State when a witness who had testied
at a preliminary hearing in a criminal case is unavailable for
trial testimony. In People v. Torres, 2012 IL 111302, without
referring to the codied rule, the supreme court addressed
the issues presented by this hearsay exception in criminal
cases. The court began its analysis by noting that (at least in
a criminal case) “constitutional considerations are inextricably
intertwined” with an evidentiary analysis on the question of
admissibility. Torres, ¶ 47. This is based on a criminal defen-
dant’s Sixth Amendment right of confrontation. See Crawford v.
Washington, 541 U.S. 36, 57-58 (2004). Consistent with U.S.
Supreme Court and its own holdings in prior cases, the Illinois
Supreme Court noted the two prerequisites for the admission
of former testimony: (1) the unavailability of the witness who
testied at the prior hearing, and (2) an adequate opportunity
for effective cross-examination during the prior testimony.
Regarding the “unavailability” requirement, the court
stressed the need for the prosecution to undertake good-faith
efforts prior to trial to locate and present the witness. Torres,
¶¶ 54-55. Although the court questioned whether unavailabil-
ity was adequately shown in this case by the State’s allegation
that the absent witness had been deported (noting that “simply
establishing the fact of deportation, in support of unavailability,
may no longer be enough to establish that requisite for admis-
sion”), it concluded that the record reected that the defendant
appeared to have stipulated to the witness’s unavailability, or
conceded it or had forfeited the issue. Torres, ¶¶ 55-56.
Regarding the “adequacy of cross-examination” require-
ment, the court held that factors that must be considered
include: (1) that the cross-examination of the witness had
the same “motive and focus” as the cross-examination at the
subsequent proceeding, and (2) that the opposing party had
an opportunity for adequate cross-examination of the witness.
As to the requirement of adequacy, the court noted that “what
counsel knows while conducting the cross-examination may,
in a given case, impact counsel’s ability and opportunity to
effectively cross-examine the witness at the prior hearing.”
Torres, ¶ 62 (emphasis in original).
In applying these factors to the case under review, the
supreme court held that the trial court had erred in admitting
the absent witness’s preliminary hearing testimony, based on
its conclusions that at the earlier hearing: (1) defense counsel
was not privy to certain inconsistent statements the witness had
given to the police, (2) counsel did not know of the witness’s
status as an alien or the circumstances of his departure from
this country, and (3) there were time and scope restrictions
placed by the circuit court on counsel at the earlier hearing.
Torres, ¶¶ 63-65.
Clearly, knowledge of the requirements provided by the
Torres decision is essential for proper application of IRE 804(b)
(1) in determining the admissibility of former testimony as a
hearsay exception.
COMMENTARY CONTINUED
280RULE 804
ARTICLE VIII. HEARSAY
exampleS of deciSionS eStabliShing adequate and inadequate
opportunity for previouS examination
In People v. Rice, 166 Ill. 2d 35 (1995), the supreme court
determined that the State had an inadequate opportunity to
cross-examine the defendant’s codefendant during a hearing on
a motion to suppress evidence, because of the limited focus at
such a hearing. The supreme court thus reversed the appellate
court’s reversal of the trial court’s exclusion of the codefendant’s
prior testimony during the trial when the codefendant invoked
his fth amendment privilege against self-incrimination. The
supreme court reasoned that the suppression hearing did not
allow the State to learn of the codefendant’s relationship with
the defendant and to confront the codefendant’s exculpatory
evidence on behalf of the defendant at the prior hearing.
In People v. Sutherland, 223 Ill. 2d 187 (2006), the supreme
court determined that the defendant had ample opportunity in
a prior trial to cross-examine a witness and the same motive
and focus. It thus afrmed the admission of the deceased wit-
ness’s prior testimony during a retrial.
In People v. Kent, 2020 IL App (2d) 180887, ¶¶ 93-107, the
appeal from the defendant’s second conviction for rst-degree
murder after his rst conviction was reversed in People v. Kent,
2017 IL App (2d) 140917, the appellate court applied Torres
and other cases in holding that the circuit court had erred in
admitting, under IRE 804(b)(1), the testimony from the rst trial
of a witness whom the State alleged was unavailable. The State’s
proffer, the court held, was unsupported by afdavit or sworn
testimony. This decision highlights, as Torres and other cited
cases had emphasized, the necessity of presenting evidence
of the efforts used to procure the presence of an allegedly
unavailable witness.
In People v. Lard, 2013 IL App (1st) 110836, the appellate
court approved the trial admission of the preliminary hearing
testimony of a deceased police ofcer who had testied to
identifying the defendant as one of two men he observed at
a burglary scene, despite the defendant’s contention that his
attorney did not possess knowledge during the preliminary
hearing examination that the deceased ofcer had responded
hours earlier to a break-in at the same location. The court held
that the earlier offense was irrelevant to the case at bar.
In People v. Starks, 2012 IL App (2d) 110273, the State
appealed the trial court’s grant of defendant’s motion in limine
that excluded the deceased complainant’s testimony from
an earlier sex-offense trial, in which convictions had been
reversed and the case remanded. Citing section 115-10.4 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.4,
which allows admission of a statement of a deceased declarant
— see Appendix R), IRE 804(b)(1), and other relevant cases (not
including Torres, which had been decided 12 days earlier), the
appellate court upheld the trial court’s ruling. The court rea-
soned that at the rst trial, “defendant did not have an adequate
opportunity or similar motive to cross-examine complainant,
because defendant was provided with incorrect serology test
results, did not know about exculpatory DNA tests, and *** was
improperly barred from asking complainant about prior sexual
conduct.” Starks, ¶ 28.
deciSionS involving Supreme court rule 414
In People v. Hood, 2016 IL 118581, the State obtained a
court order under Supreme Court Rule 414 permitting the video
evidence deposition of the badly beaten 69-year-old victim of
an aggravated battery offense. The evidence deposition was
taken and admitted at trial under IRE 804(b)(1), and the defen-
dant was convicted. On appeal, the defendant contended that
the deposition testimony was improperly admitted because he
had not been present and thus his right to confront the witness
had been violated. In support, he alleged there was error in not
obtaining a written waiver of his right to confront the witness
for the evidence deposition as required by Rule 414(e).
The supreme court rejected his contentions. It held that the
requirements of Crawford had been satised: the witness was
unable to attend the trial because of his mental condition, and
the defendant had a prior opportunity to cross-examine the
victim at the evidence deposition. Though the defendant had
not attended the deposition, he had waived his right to do so,
and two of his attorneys had been present and had cross-exam-
ined the witness. The court acknowledged that the requirement
of a written waiver under Rule 414(e) had been violated, but
held that it was not a constitutional requirement, and there was
ample evidence, including a stipulation by defense counsel,
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ARTICLE VIII. HEARSAY
RULE 804
(b)(2) Statement Under the Belief of Imminent
Death. In a prosecution for homicide or in a civil
case, a statement that the declarant, while believing
the declarant’s death to be imminent, made about its
cause or circumstances.
Author’s Commentary on Ill. R. Evid. 804(b)(2)
IRE 804(b)(2) is identical to FRE 804(b)(2) before its amend-
ment solely for stylistic purposes effective December 1, 2011,
except for the non-adoption of the phrase “or in a civil action
or proceeding” (replaced by “or in a civil case” in the current
federal rule). That phrase was not adopted because, contrary to
the federal rule, in Illinois statements under belief of impending
death are admissible only in homicide cases, and not in civil
cases.
The historical acceptance of the “dying declaration” excep-
tion to the hearsay rule was recognized in both Crawford v.
Washington, 541 U.S. 36 (2004) and Giles v. California, 554
U.S. 353 (2008), but without a clear statement that it satised
Crawford’s “testimonial statements” requirements. People v.
Harris, 2020 IL App (5th) 160454, ¶¶ 37-provides an histor-
ical discussion of the treatment of this hearsay exception in
Illinois, which includes the Second District decision in People
v. Gilmore, 356 Ill. App. 3d 1023 (2004) and the First District
decision in People v. Graham, 392 Ill. App. 3d 1001 (2009).
In Harris, the appellate court reasoned, “We nd no reason
to depart from the decisions in Gilmore and Graham nding
that the admission of dying declarations do not offend the sixth
amendment confrontation clause.”
People v. Beier, 29 Ill. 2d 511 (1963), furnishes the underly-
ing rationale for the dying-declaration exception to the hearsay
rule:
(b)(2) Statement Under Belief of Impending
Death. In a prosecution for homicide, a statement
made by a declarant while believing that the declar-
ant’s death was imminent, concerning the cause or
circumstances of what the declarant believed to be
impending death.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY CONTINUED
that the defendant had waived his right to be present. He thus
had waived his sixth amendment right to confront the witness.
People v. Weinke, 2016 IL App (1st) 141196, provides an
example of a case where an evidence deposition taken under
Supreme Court Rule 414 was determined to have been taken
pursuant to an unjustied emergency basis, and under circum-
stances that deprived defense counsel of an adequate time to
prepare. The deposition, which incriminated the defendant and
was admitted into evidence after the deponent died months
later from a cause that defendant argued was unrelated to his
actions, was determined to have violated the defendant’s con-
stitutional rights, thus resulting in a reversal of his conviction
for rst degree murder and a remand for a new trial.
Seventh circuit deciSion related to rule 804(b)(1)
For an example of the Seventh Circuit’s application of FRE
804(b)(1) (in circumstances equally applicable to IRE 804(b)
(1)), see U.S. v. Wallace, 753 F.3d 671 (7th Cir. 2014) (trial court
properly refused admission of a videotaped recantation by a
non-testifying alleged purchaser of cocaine from the defendant,
on the basis that the tape was inadmissible hearsay that had not
satised FRE 801(b)(1)’s requirements that the statements were
made at a deposition or court hearing in which the declarant
had been subject to cross-examination).
282RULE 804
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
“The belief of the dying man that death is impend-
ing furnishes the guaranty of truthfulness which
makes his declaration admissible in evidence.
The rule is that such a declaration must be made
under the xed belief and moral conviction of
the person making it that his death is impending
and certain to follow almost immediately, without
opportunity for repentance and in the absence of
all hope of avoidance, when he has despaired of
life and looks to death as at hand. (People v. Maria,
359 Ill. 231.) As this court said in the Maria case
(359 Ill. p. 235), ‘In the rst instance the court
must be satised, beyond a reasonable doubt, that
the statement was made in extremis, and unless it
was so made it should not be allowed to go to the
jury.’” Beier, 29 Ill. 2d at 515.
People v. Gilmore, 356 Ill. App. 3d 1023 (2005), provides
the elements necessary for admission of a dying declaration:
“In order to admit a statement as a dying declara-
tion, the proponent must show beyond a reasonable
doubt that: (1) the statement relates to the cause
or circumstances of the underlying homicide; (2)
the declarant believes death is impending and
almost certain to imminently follow; and (3) the
declarant is mentally capable of giving an accurate
statement regarding the cause or circumstances of
the homicide.” Gilmore, 356 Ill. App. 3d at 1031.
People v. Perkins, 2018 IL App (1st) 133981, provides an
interesting analysis for the non-application of the dying dec-
laration exception. In that case the victim was shot in the face
by the defendant. She made three statements identifying the
defendant as the person who shot her. However, despite the
seriousness of her injury, she gave no indication of a belief
in her impending death, she was coherent in making each
of her statements, and she died nine days after the shooting.
Reviewing and applying a number of decisions related to the
dying-declaration exception to the hearsay rule, the appellate
court concluded that the exception did not apply in this case.
Perkins, at ¶¶ 56-66. Ultimately, however, the court allowed
admissibility under the forfeiture-by-wrongdoing exception to
the hearsay rule. Id. at ¶¶ 81-88.
283
ARTICLE VIII. HEARSAY
RULE 804
Author’s Commentary on Ill. R. Evid. 804(b)(3)
IRE 804(b)(3) is identical to FRE 804(b)(3) before the latter’s
amendment effective December 1, 2010 (a year before the
general amendments solely for stylistic purposes on December
1, 2011), except for Illinois’ change in the second sentence
from the specic, “to exculpate the accused,” to the general,
“in a criminal case” (a change also made in the current federal
rule in FRE 804(b)(3)(B)). The federal rule’s December 1, 2010
amendment added subdivision (A) and (B). Because the federal
rule already had been amended effective December 1, 2010,
no changes (except for initial upper case letters in the title)
were made to it by the December 1, 2011 amendments solely
for stylistic purposes. Both rules apply in civil and criminal
cases, and the change in the Illinois version makes it clear
that the rule applies both to the State and to the defendant in
a criminal case, and that the requirement of trustworthiness
likewise applies to both parties in a criminal case. (See section
(10) under the “Modernization” discussion in the Committee’s
general commentary on page 4 of this guide.)
Sword and Shield attributeS
The rule has both “sword and shield” attributes. When
invoked by the defendant in a criminal case, it is intended
to exculpate. When invoked by the State, on the other hand,
it is for the purpose of inculpating the defendant. That is so
because, when statements of an out-of-court declarant satisfy
the requirements of the rule, they frequently inculpate the
defendant on trial. Such against-the-interest-of-the-declarant
statements are admissible as an exception to the hearsay rule
against an implicated defendant if they pass the trustworthiness
test. For an example of such a case, see U.S. v. Watson, 525
F.3d 583 (7th Cir. 2008) (statement of a codefendant impli-
cating the defendant met trustworthiness test of FRE 804(b)(3)
and its admission did not violate the confrontation clause as
a “testimonial statement” under Crawford v. Washington, 541
U.S. 36 (2004)).
In applying the rule when it is invoked by the State, it must
be recognized that a declarant might seemingly (and some-
times unknowingly) implicate himself in the commission of an
offense while trying to shift total or primary responsibility onto
the defendant, thus making the trustworthiness of the statement
questionable. See, for example, People v. Caffey, 205 Ill. 2d 52
(2001), where the supreme court observed that “a statement
admitting guilt and implicating another person, made while
(b)(3) Statement Against Interest. A statement
that:
(A) a reasonable person in the declarant’s
position would have made only if the person
believed it to be true because, when made, it
was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone
else or to expose the declarant to civil or criminal
liability; and
(B) is supported by corroborating circum-
stances that clearly indicate its trustworthiness, if
it is oered in a criminal case as one that tends to
expose the declarant to criminal liability.
(b)(3) Statement Against Interest. A statement
which was at the time of its making so far contrary
to the declarant’s pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person
in the declarant’s position would not have made the
statement unless believing it to be true. A statement
tending to expose the declarant to criminal liability
and oered in a criminal case is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement.
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FEDERAL RULES OF EVIDENCE
COMMENTARY
284RULE 804
ARTICLE VIII. HEARSAY
in custody, may well be motivated by a desire to curry favor
with the authorities and, accordingly, fail to qualify as against
interest.” Caffey, 205 Ill. 2d at 99, citing Williamson v. United
States, 512 U.S. 594, 601-02 (1994) (holding that statements
of the declarant that were partially self-exculpatory but that
inculpated the defendant were improperly admitted).
Chambers v. mississiPPi
Chambers v. Mississippi, 410 U.S. 284 (1973), is often cited
in cases that address the common-law version of this rule. In that
case the United States Supreme Court found that, in addition
to having erred in not allowing an adverse examination by the
defendant of the witness who allegedly made the extrajudicial
statements that he (the witness) had committed the murder, the
trial court also erred in not allowing the defendant to call the
witnesses to whom the statements allegedly had been made.
The Court offered four factors that provided indicia of reliability
that were relevant in that case: (1) the statement was made
spontaneously to a close acquaintance shortly after the crime
occurred; (2) the statement was corroborated by other evidence;
(3) the statement was self-incriminating and against the declar-
ant’s penal interest; and (4) in that case, there was an adequate
opportunity to cross-examine the declarant. Note, however,
that Chambers did not involve an out-of-court statement by an
absent witness. Rather, it involved prior testimony by a witness
who was present and available for cross-examination.
PeoPle v. boWell
Indeed, in People v. Bowell, 111 Ill. 2d 58 (1980), the Illinois
Supreme Court held that the Chambers factors were “regarded
simply as indicia of trustworthiness and not as requirements
of admissibility.” For an Illinois Supreme Court case that dis-
cusses both Chambers and the application of the rule before its
codication, see People v. Rice, 166 Ill. 2d 35 (1995) (nding
that there was insufcient indicia of the reliability of the code-
fendant’s testimony at an earlier suppression hearing, and thus
holding that the testimony was inadmissible at trial under either
Chambers or FRE 804(b)(3)). See also People v. Tenney, 205 Ill.
2d 411 (2002) (holding that it was error to exclude testimony
from a witness that another had provided her a statement that
inculpated him and exculpated the defendant because there
was sufcient indicia of reliability concerning the witness’s
extrajudicial statement.
PeoPle v. lUna
In People v. Luna, 2013 IL App (1st) 072253, the appellate
court held that the trial court’s denial of the defendant’s motion
to admit the out-of-court statements of two persons under this
exception to the hearsay rule was proper, where neither of them
implicated themselves in the offenses, but merely asserted that
they were present at the crime scene. Citing Tenney (quoting
People v. Keene, 169 Ill. 2d 1, 29 (1995)), the court stated that
statements must be self-incriminating and against penal inter-
est, and that the supreme court has directed that because “‘a
statement of such a nature is the bedrock for the exception, that
factor, obviously, must be present.’” Luna, at ¶ 145 (emphasis
added by the court).
PeoPle v. Cross
In People v. Cross, 2021 IL App (4th) 190114, a prosecution
for rst degree murder, defendant moved in limine to allow at
trial evidence of a rap music video made by defendant’s cousin,
a video that defendant argued was a third-party confession to
the shooting of the victim. In the video, defendant’s cousin
raps, “Nigga shot up Granny house. Had to hunt him down.
He gone. Where he at? Body resting in the fucking ground. He
gone.” Defendant’s cousin had been shot and killed earlier, so
he was not available to testify. The trial court denied admission
of the video, concluding that sufcient indicia of trustworthi-
ness did not exist.
On appeal after his jury conviction, defendant contended
that the trial court had erred in not allowing admission of the
rap music video because it prevented him from presenting
evidence that his cousin had made the music video in which
he “took credit” for shooting the victim. After separately deter-
mining that defendant had properly been found guilty beyond
a reasonable doubt, the appellate court held that the trial court
had properly excluded the music video. The court offered
a number of reasons (see id. at ¶¶ 122-141) for so holding:
(1) the statements were not made spontaneously to a close
acquaintance shortly after the crime occurred, their having
been made in a music video three months after the shooting,
which clearly required signicant planning and effort; (2)
COMMENTARY CONTINUED
285
ARTICLE VIII. HEARSAY
RULE 804
COMMENTARY CONTINUED
the statements lacked substantial corroboration, lacking any
details, other than the killing itself; (3) the statements were
not particularly self-incriminating and against the declarant’s
interest because they were very vague, and that other segments
of the video may have indicated that defendant’s cousin may
not have been referring to himself specically as the killer but
instead could have been “glorifying” the murder of the victim
by others, including defendant; (4) there was no opportunity to
cross-examine defendant’s cousin because he was killed before
trial; and (5) the music video was an artistic endeavor in which
hip hop artists in particular frequently use their music to boast
about crimes that either they had no part in or are even entirely
ctional, so that the reliability of a statement is diminished
when it is created as a part of an artistic endeavor.
PeoPle v. Wright
The takeaway from the cases, as illustrated by the wording
of Rule 804(b)(3) itself, and as emphasized by the Illinois
Supreme Court in People v. Wright, 2017 IL 119561, is that,
for this exception to the hearsay rule to apply in a criminal
case there are “three conditions that must be satised before
a statement will be admitted under the rule: ‘(1) the declarant
must be unavailable, (2) the declarant’s statement must have
been against his or her penal interest, and (3) corroborating cir-
cumstances must support the trustworthiness of the statement.’”
Wright, at ¶ 80, citing People v. Rice, 166 Ill. 2d 35, 43 (1995).
The statement in Bowell that the four factors in Chambers are
merely related to trustworthiness and not requirements of
admissibility is borne out by the fact that the rule says nothing
about the rst or fourth factors provided by Chambers, and
that are listed above—factors which, when present, merely
contribute to trustworthiness.
deciSionS on truStworthineSS
For a Seventh Circuit decision discussing in detail the
“trustworthiness” requirement of the rule, see United States v.
Henderson, 736 F.3d 1128 (7th Cir. 2013), where the court
held that the trial court had not erred in barring the testimony of
a witness, who would have testied that another person admit-
ted to him that he possessed the gun that the defendant was
charged with possessing, because of the lack of corroborating
circumstances that clearly indicated that the other person’s
hearsay statement was trustworthy.
In People v. Rebollar-Vergara, 2019 IL App (2d) 140871, ¶¶
77-89, based on the lack of trustworthiness, the appellate court
afrmed the trial court’s exclusion of a codefendant’s statement
that he alone was responsible for the murder offense and his
denial that defendant “had anything to do with this.” The appel-
late court stressed that, though a surveillance video showed
that the codefendant was the shooter, it also undermined the
codefendant’s other statements related to the offense.
In United States v. Hammers, 942 F.3d 1001 (10th Cir.
2019), the Tenth Circuit Court of Appeals cited the same
required conditions provided by Wright. It reasoned that a
“close relationship between the declarant and the defendant
can damage the trustworthiness of a statement.” Id. at 1011. In
that case, the court held that the district court had not abused
its discretion in barring the declarant’s suicide note, which
accepted full responsibility for the offenses while exonerating
the defendant, reasoning that the declarant (who did commit
suicide) had been dishonest and untrustworthy in connection
with her underlying criminal conduct, and that her suicide note
showed that she “had no intention of sticking around to face
criminal prosecution.” Id.
need for “unavailability”
See also the Author’s Commentary on IRE 804(a), discuss-
ing the holding in People v. Garcia, 2012 IL App (2d) 100656,
where, in a case alleging joint possession, the plea of guilty
to the offense of possession of cocaine of the passenger in
defendant’s truck was held to be inadmissible on the basis that
the passenger was not “unavailable” as required by IRE 804(a)
in order to trigger application of IRE 804(b)(3).
286RULE 804
ARTICLE VIII. HEARSAY
(b)(4) Statement of Personal or Family His-
tory. A statement about:
(A) the declarant’s own birth, adoption,
legitimacy, ancestry, marriage, divorce, relation-
ship by blood, adoption, or marriage, or similar
facts of personal or family history, even though
the declarant had no way of acquiring personal
knowledge about that fact; or
(B) another person concerning any of these
facts, as well as death, if the declarant was related
to the person by blood, adoption, or marriage
or was so intimately associated with the person’s
family that the declarant’s information is likely to
be accurate.
(b)(4) Statement of Personal or Family History.
(A) A statement concerning the declarant’s
own birth, adoption, marriage, divorce, legiti-
macy, relationship by blood, adoption, or mar-
riage, ancestry, or other similar fact of personal
or family history, even though declarant had no
means of acquiring personal knowledge of the
matter stated; or
(B) a statement concerning the foregoing
matters, and death also, of another person, if
the declarant was related to the other by blood,
adoption, or marriage or was so intimately asso-
ciated with the other’s family as to be likely to
have accurate information concerning the matter
declared.
Author’s Commentary on Ill. R. Evid. 804(b)(4)
IRE 804(b)(4) is identical to FRE 804(b)(4) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
IRE 804(b)(4)(A) allows evidence of an unavailable declar-
ant’s statement about that declarant’s own personal and family
history—including about some matters of which the declarant
could have no personal knowledge, such as his or her own
birth.
IRE 804(b)(4)(B) allows evidence of an unavailable declar-
ant’s statement about another person’s personal or family
history—including about the other person’s death—where the
declarant was related to the other person or intimately associ-
ated with the other person’s family.
Note that IRE 803(19) differs form this rule in allowing
reputation evidence, from among members of a person’s family
or among a person’s associates or in the community, about a
person’s personal or family history.
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287
ARTICLE VIII. HEARSAY
RULE 804
Author’s Commentary on Ill. R. Evid. 804(b)(5)
IRE 804(b)(5) is identical to FRE 804(b)(6) before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, former FRE 804(b)(5) “Other Exceptions,” having
been transferred to FRE 807, which is now entitled “Residual
Exception.” The rule applies to both civil and criminal cases. It
codies the common-law doctrine of forfeiture by wrongdoing.
PeoPle v. DreW Peterson
People v. Peterson, 2017 IL 120331, represents the Illinois
Supreme Court’s most denitive rulings on the forfeiture by
wrongdoing exception to the hearsay rule. In that case, the
court reviewed and afrmed the appellate court’s decision from
an interlocutory ruling of the trial court in People v. Peterson,
2012 IL App (3d) 100514-B, and the appellate court’s decision
afrming the defendant’s jury-trial conviction for rst degree
murder in People v. Peterson, 2015 IL App (3d) 130157.
In Peterson, the trial court had ruled inadmissible certain
out-of-court statements made by the defendant’s deceased third
wife and his missing fourth wife. The statements had been ruled
inadmissible despite the trial court’s determination, by a pre-
ponderance of the evidence, that the defendant had murdered
both wives and that he had done so to make them unavailable
as witnesses. The trial court had based its rulings barring the
statements of the wives on its conclusion that the State had
failed to establish the reliability of the excluded out-of-court
statements as required by (now-repealed) section 115-10.6 of
the Code of Criminal Procedure of 1963. See now-repealed
735 ILCS 5/115-10.6(e)(2); available as the rst statute provided
at Appendix N.
Noting that under both the common law and the codied
rule, only two factors are necessary and both had been found
to be present by the trial court, and noting further that reliability
of the out-of-court statements is not an element of forfeiture by
wrongdoing, the supreme court rst considered the separation
of powers issue in order to determine whether the statute or
the rule should govern. Finding that the reliability requirement
of the statute created an irreconcilable conict with a rule of
the court, and considering the court’s rule-making authority to
adopt rules of evidence governing the admission of evidence at
trial, the supreme court held that “separation of powers prin-
ciples dictate that the rule will prevail.” Peterson, at ¶ 34. The
court thus found that the admissibility of the hearsay statements
of the two wives “was governed by the common-law doctrine
of forfeiture by wrongdoing, embodied in Illinois Rule of
Evidence 804(b)(5), and not section 115-10.6 of the Code.” Id.
The supreme court thus held that the reliability of out-of-court
statements is not required by the codied rule.
The supreme court then considered the sufciency of the
evidence at the pretrial forfeiture hearing. The court rst held
that the State’s burden of proof at a forfeiture by wrongdoing
hearing is a preponderance of the evidence, and that the
standard of review is whether the trial court’s nding is against
the manifest weight of the evidence. It then held that the State
needed to establish that the defendant’s intent was to prevent
(b)(5) [Other Exceptions.] [Transferred to Rule
807.]
(b)(6) Statement Oered Against a Party at
Wrongfully Caused the Declarant’s Unavail-
ability. A statement oered against a party that
wrongfully caused—or acquiesced in wrongfully
causing—the declarant’s unavailability as a witness,
and did so intending that result.
(b)(5) Forfeiture by Wrongdoing. A statement
oered against a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, pro-
cure the unavailability of the declarant as a witness.
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288RULE 804
ARTICLE VIII. HEARSAY
the out-of-court declarant from testifying, but that the State
need not “identify the specic testimony from the absent
witness that the defendant wished to avoid.” Peterson, at ¶ 42.
Noting that, under IRE 104(a), hearsay evidence is admissible
at a forfeiture hearing, and that “the court is not bound by
the rules of evidence except those with respect to privilege”
(Peterson, at ¶ 44), the supreme court found that the evidence
established that defendant sought to prevent his third wife from
testifying “at least in part” on matters related to their divorce,
such as child custody, child support, maintenance, and division
of property, and that it did not matter that the defendant may
have had other motives for killing his wife. As for the missing
fourth wife, the supreme court held valid the State’s contention
that the defendant sought to prevent her from reporting his
criminal conduct to the police, holding that the existence of a
pending legal proceeding is not a requirement. In supporting
its conclusion that intentionally silencing a potential witness
justies application of the forfeiture by wrongdoing rule, the
court stated:
“Were we to hold otherwise, the equitable under-
pinnings of the forfeiture by wrongdoing doctrine
would be undermined, and the doctrine’s very
purpose—to prevent a defendant from thwarting
the judicial process by taking advantage of his own
wrongdoing (Reynolds [v. United States], 98 U.S.
[145], at 159 [1819]; [In re] Rolandis G., 232 Ill.
2d [13] at 40 [(2008)]—would be defeated. Equity
demands that a defendant who silences a witness,
or a potential witness, through threats, physical
violence, murder, or other wrongdoing should not
be permitted to benet from such conduct based
solely on the fact that legal proceedings were not
pending at the time of his wrongdoing.” Peterson,
at ¶ 57.
Finally, regarding the defendant’s contention that statements
made by his missing fourth wife were privileged and thus
should not have been admitted, the supreme court held that the
statements she made to an attorney were not barred because
the attorney had informed her that he could not represent her,
so there was no attorney-client privilege; and the statements
she made to her pastor were not barred by the clergy privilege
because the pastor had testied that there were no rules, prac-
tices, precepts, or customs of his church that bound him with
respect to the condentiality of his counseling sessions.
Perkins, krisik, and zimmerman: appellate court’S application of
Peterson
People v. Perkins, 2018 IL App (1st) 133981, provides an
application of the doctrine of forfeiture-by-wrongdoing. After
rst rejecting the application of the dying declaration and
excited utterance exceptions to the hearsay rule, the decision
provides a review of the supreme court decision in Peterson,
applying the holding in that decision to the case at bar, and
concludes that three statements identifying the shooter, made
by the victim who was shot in her face before her death,
qualied as exceptions to the hearsay rule under the forfei-
ture-by-wrongdoing exception, despite the absence of pending
legal proceedings. Pointing out that the equitable doctrine of
forfeiture-by-wrongdoing extinguishes confrontation clause
claims, the appellate court held admissible the victim’s three
statements and rejected the defendant’s claim to sixth amend-
ment protection. Perkins, at ¶¶ 81-88.
In People v. Krisik, 2018 IL App (1st) 161265, the defendant
was convicted of aggravated battery, which for sentencing pur-
poses was merged with a conviction for aggravated domestic
battery. The victim of the offense was the defendant’s girl friend,
who was the mother of his infant son. After the offense, the
victim gave an assistant state’s attorney a typewritten statement,
which described the violence inicted on her by the defendant.
The State provided the trial court recorded evidence of the
defendant’s conversations with the victim and the defendant’s
mother wherein he sought to have the victim relocate to a differ-
ent state or otherwise avoid the service of a subpoena for trial.
The victim was unable to be served with a subpoena and did
not appear for trial. The issue on appeal concerned the propriety
of the admission in evidence of the victim’s typed statement,
with the defendant contending that the State failed to prove
the causation element of its forfeiture by wrongdoing claim.
Because the victim had testied at the preliminary hearing that
“she did not want to press felony charges against defendant
because he is her son’s father and she was concerned about the
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ARTICLE VIII. HEARSAY
RULE 804
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child not having his father around” (Krisik at ¶ 42), there was
some basis for the defendant’s contention that the victim chose
to avoid service and to not attend court on her own initiative.
The appellate court rejected that argument, concluding that
causation need not be established by direct evidence or testi-
mony and may be established by inference from circumstantial
evidence. Id. at ¶ 55. Based on the preponderance-of-evidence
requirement and the standard of review applicable to forfeiture
by wrongdoing, the appellate court concluded that the trial
court’s admission of the typed statement was not against the
manifest weight of the evidence. Id. at ¶ 57.
In People v. Zimmerman, 2018 IL App (4th) 170695, an
interlocutory appeal of the trial court’s rulings related to the
doctrine of forfeiture by wrongdoing, the appellate court
rejected numerous arguments made by the State. Initially, the
court noted that in this case the application of the doctrine of
forfeiture by wrongdoing was not at issue, the only issue being
“the scope of the evidence admissible under the doctrine of
forfeiture by wrongdoing and the trial court’s role in determin-
ing that scope.” Zimmerman, at ¶ 99. The court rst rejected
the State’s contention that the trial court erred in barring state-
ments made to witnesses by the victim before the victim was
murdered, a contention based on the trial court’s insistence,
during the hearing to bar statements, that witnesses relate to
the best of their ability specic statements made by the victim,
rather than providing conclusions, opinions, or speculation.
The appellate court ruled that the State’s contention was not
borne out by the record, which established that the trial court
did not unduly limit or restrict testimony by any witness during
the hearing on the motion to suppress statements, despite its
understandable preference for specic statements.
Arguing that IRE 804(b)(5) does not limit the subject matter
of the statements that may be admissible under the doctrine of
forfeiture by wrongdoing, the State contended also that the trial
court had erred in limiting the admissible evidence to statements
that “are evidence of defendant’s specic intent to prevent the
victim from being a witness.” Id. at ¶ 108. Acknowledging that
the State was correct on the legal issue of the rule not limiting
the subject matter of the victim’s statements, the appellate
court held that, once the trial court decided that the doctrine
of forfeiture by wrongdoing applied, the only questions for the
trial court to consider was whether evidence was (1) relevant
and (2) otherwise admissible, which is what the trial court did
in admitting three of the victim’s statements while holding that
other statements offered by the State were unnecessary and
of limited probative value—a proper application of Rule 403
because the excluded statements had reduced probative value
for they start to become cumulative. Id. at ¶ 121.
Finally, the appellate court held that the victim’s “statements
that she was afraid of defendant, without any further context,
amount to an opinion as to defendant’s character, opening the
door to the possibility that the jury would convict defendant on
an impermissible basis,” and were thus properly barred by the
trial court. Id. at ¶ 124.
conSpiracy theory applied to doctrine of forfeiture by
wrongdoing
In People v. Davis, 2018 IL App (1st) 152413, ¶¶ 30-42, a
witness to the offenses of murder and attempted murder testied
before the grand jury, providing incriminatory evidence against
the two defendants. Afterwards, the witness was murdered by
two men who were later convicted of that offense. Although
it was clear that the defendants had not personally killed the
witness who had given grand jury testimony implicating them
in the earlier offenses, the grand jury testimony of the deceased
witness was admitted under the doctrine of forfeiture by wrong-
doing. The issue confronting the appellate court was whether
the doctrine could be invoked based on a conspiracy theory of
liability as set forth in Pinkerton v. U.S., 328 U.S. 640 (1946).
Citing decisions of federal circuit courts of appeal and
relying on the evidence—including even hearsay evidence as
allowed by IRE 104(a)—the appellate court held that the trial
court’s nding that the defendants intended to, and did procure
the unavailability of the witness was not against the manifest
weight of the evidence. The court held that there was evidence
to support nding that the defendants and the killers of the
witness were in a conspiracy to kill the witness, and that the
killing of the witness was undertaken with the purpose of caus-
ing the witness’s unavailability as a witness. Pointing out that
the misconduct of one conspirator may be imputed to another
conspirator if the misconduct was within the scope and in
290RULE 804
ARTICLE VIII. HEARSAY
furtherance of the conspiracy, and was reasonably foreseeable
to him, the court concluded that “there is evidence defendants’
co-conspirator killed [the witness] because of his cooperation
with police and that intent can be imputed to them.” Davis, at
¶ 42.
united StateS Supreme court deciSionS: no confrontation clauSe
bar and intent to prevent witneSS from teStifying a neceSSary
factor
In Davis v. Washington, 547 U.S. 813, 833 (2006), the
United States Supreme Court noted that the federal rule codi-
ed the common-law forfeiture doctrine as a hearsay exception
that does not violate the confrontation clause; and in Giles v.
California, 554 U.S. 353, 374 (2008), citing Davis, the Court
stated: “The common-law forfeiture rule was aimed at removing
the otherwise powerful incentive for defendants to intimidate,
bribe, and kill the witnesses against them—in other words, it is
grounded in ‘the ability of courts to protect the integrity of their
proceedings.’” Giles limited the doctrine’s application to cases
where there is evidence of the defendant’s intent to prevent the
witness from testifying, holding that it did not automatically
apply where the offense is murder.
steChly and hanson: pre-codification illinoiS deciSionS
For an early pre-codication and a pre-Giles Illinois Supreme
Court decision on forfeiture by wrongdoing, one that provides
a thorough analysis of the common-law rule and its application
in Illinois, see People v. Stechly, 225 Ill. 2d 246 (2007) (holding
that, based on prior U.S. Supreme Court decisions and the
specic wording of FRE 804(b)(6), which codied the com-
mon-law equitable doctrine of forfeiture by wrongdoing and is
the counterpart to the Illinois rule, the common law required
proof of an intent to prevent the witness from testifying, proof
that is established by a preponderance of the evidence). See
also People v. Hanson, 238 Ill. 2d 74, 97-99 (2010) (expressly
recognizing that the doctrine of forfeiture by wrongdoing
serves as an exception to the hearsay rule; also holding that
the doctrine applies to both testimonial and nontestimonial
statements, thus extinguishing confrontation clause claims;
and further holding that the reliability of the statement is not
relevant in determining admissibility, because such a require-
ment is inconsistent with the party’s having forfeited the right
to examine the absent declarant and would thus “undermine
the equitable considerations at the center of the doctrine,”
and because of the party’s right to challenge the credibility of
the witness who offers testimony about the statement through
cross-examination).
repealed StatuteS
Note that, because they were decided before the Illinois
evidence rules were codied, Stechly and Hanson considered
application of this hearsay exception based on a statute that was
repealed by Public Act 99-243, effective August 3, 2015. That
statute was section 115-10.6 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/115-10.6). The statute made admissible
the statements of a declarant who was killed by the defendant
to prevent the declarant from testifying in a criminal or civil
case. It was substantially identical to IRE 804(b)(5), except for
its murder requirement and its requirement—in section 115-
10.6(e)(2)—for reliability of the statement. As noted above,
Hanson held that reliability is not an element for admissibility
of a statement under the doctrine of forfeiture by wrongdoing.
And, as also noted above, that principle is the focus of the
Peterson decision. Thus, the repeal of section 115-10.6 means
that IRE 804(b)(5) alone will be applied in all current and future
cases involving forfeiture by wrongdoing—ending the confu-
sion related to having a statute and a rule addressing the same
subject, with one of them (the statute) containing an extra (and,
as illustrated by the cases, an unnecessary) provision.
Note, too, that Public Act 99-423 also repealed what was
section 115-10.7 of the Code of Criminal Procedure (725 ILCS
5/115-10.7). That statute made admissible the statements of
any unavailable witness whose absence was wrongfully pro-
cured. The repeal was appropriate because it was unnecessary
to have two statutes applying the same principles to similar
factual scenarios, when a single rule would sufce. IRE 804(b)
(5) alone sufces for all cases involving forfeiture by wrongdo-
ing—whether by murder or by any other means. Because both
statutes provided pre-codication application of the hearsay
exception for forfeiture by wrongdoing, they are provided in
the appendix at Appendix N.
PeoPle v. nixon and PeoPle v. Coleman
In People v. Nixon, 2016 IL App (2d) 130514, the appellate
court afrmed the circuit court’s admission of the victim’s
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ARTICLE VIII. HEARSAY
RULE 804
COMMENTARY CONTINUED
written statement to police about the defendant’s actions. The
court held that the absence of the victim from the trial had
adequately established forfeiture by wrongdoing based on the
victim’s fear of the defendant and evidence of the defendant’s
“friendly inducement” efforts.
In People v. Coleman, 2014 IL App (5th) 110274, ¶¶ 130-
39, where the defendant was convicted of murdering his wife
and his two sons, the appellate court approved the testimony
of ve witnesses who testied about statements made to them
by the wife/victim about her concern that the defendant wished
to divorce her because she and their sons were ruining his life.
There also was evidence that the defendant had made plans to
divorce his wife, and that there was the possibility of his losing
his job with a religious organization if he did so. Although the
appellate court did not cite IRE 804(b)(5), it cited the relevant
statute (section 115-10.6 of the Code of Criminal Procedure
of 1963 before its repeal effective on August 3, 2015), as well
as the counterpart federal rule of evidence and common law,
to conclude that, under the statute and the common law, the
admission of the statements related to the witnesses by the
deceased wife established a motive for the defendant’s com-
mitting the murders, and that the forfeiture-by-wrongdoing
exception to the hearsay rule justied the admission of the
statements, even though there had not yet been a divorce ling.
Seventh circuit deciSionS applying the rule
For a Seventh Circuit opinion applying FRE 804(b)(6) (the
federal counterpart to IRE 804(b)(5)), see U.S. v. Jonassen, 759
F.3d 653 (7th Cir. 2014). In Jonassen, where the defendant was
convicted of kidnapping his 21-year-old daughter and obstruc-
tion of justice, the daughter, who had given pretrial statements
to the FBI, testied at trial, but responded to questions with
answers that were the equivalent of having no memory of the
underlying facts. Based on substantial evidence that the defen-
dant had made numerous efforts at convincing his daughter
not to testify against him, efforts that the court concluded were
successful, the Seventh Circuit held that the daughter was
unavailable under Rule 804(a), and her pretrial statements to
the FBI were therefore properly admitted.
For an example of a Seventh Circuit decision that applied the
holding in Giles v. California, 554 U.S. 353 (2008) (holding the
forfeiture by wrongdoing exception to the hearsay rule applies
only where the reason for the defendant’s wrongdoing is to
prevent the declarant from testifying), see Jensen v. Clements,
800 F.3d 892 (7th Cir. 2015), where in the context of the review
of a mandamus ruling, the court held that, in the prosecution
of the defendant for murder, in the absence of evidence that
the defendant killed his wife to prevent her from testifying, it
was error—and not harmless error—to admit a letter and other
accusatory statements made by the defendant’s wife prior to
her death.
292RULE 805
ARTICLE VIII. HEARSAY
Rule 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements
conforms with an exception to the rule.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded
under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay
rule provided in these rules.
Author’s Commentary on Ill. R. Evid. 805
IRE 805 is identical to FRE 805 before the latter’s amendment
solely for stylistic purposes effective December 1, 2011. For a
supreme court case that predates the codied rule but illustrates
its application, see People v. Thomas, 178 Ill. 2d 215 (1997)
(proper to admit at trial out-of-court statement of witness’s
ancée to the defendant because the statement qualied as a
statement by a coconspirator involving an effort at concealment
or as an excited utterance, and also proper to admit the prior
inconsistent statement of the witness under section 115-10.1(c)
(2) of the Code of Criminal Procedure (now incorporated into
IRE 801(d)(1)(A)(2)); thus making both statements admissible as
exceptions to the hearsay rule).
For an appellate court example of the application of the rule,
see Holland v. Schwan’s Home Service , Inc., 2013 IL App (5th)
110560, where, citing the rule, the court held that statements
in a business record (an insurance carrier’s claim form), which
were made by defendant’s employees, were party admissions;
and that statements made by a non-employee (an employee of
the third-party administrator of the insurance carrier’s workers’
compensation claims) were admissible to establish only that
she made the statements, which were relevant to show defen-
dant’s knowledge, not as proof of the matter asserted in the
statements, and thus were not hearsay. Holland, at ¶¶ 182-86.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
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293
ARTICLE VIII. HEARSAY
RULE 806
Rule 806. Attacking and Supporting the Declarant’s
Credibility
When a hearsay statement—or a statement described
in Rule 801(d)(2)(C), (D), or (E)—has been admitted
in evidence, the declarant’s credibility may be attacked,
and then supported, by any evidence that would be
admissible for those purposes if the declarant had testi-
ed as a witness. e court may admit evidence of the
declarant’s inconsistent statement or conduct, regard-
less of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against
whom the statement was admitted calls the declarant as
a witness, the party may examine the declarant on the
statement as if on cross-examination.
Rule 806. Attacking and Supporting Credibility of
Declarant
When a hearsay statement, or a statement dened
in Rule 801(d)(2)(C), (D), (E), or (F), has been
admitted in evidence, the credibility of the declarant
may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those
purposes if declarant had testied as a witness. Evidence
of a statement or conduct by the declarant at any time,
inconsistent with the declarant’s hearsay statement, is
not subject to any requirement that the declarant may
have been aorded an opportunity to deny or explain.
If the party against whom a hearsay statement has been
admitted calls the declarant as a witness, the party is
entitled to examine the declarant on the statement as if
under cross-examination.
Author’s Commentary on Ill. R. Evid. 806
IRE 806 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except for the addition of (F) in the rst part of the rst
sentence, which was done to reect that subdivision (F) was
added to IRE 801(d)(2).
Note that this rule is consistent with the provisions of the
last sentence of IRE 613(b), which excuses the need to afford a
party-opponent under IRE 801(d)(2) an opportunity to explain
or deny a prior inconsistent statement and affords the opposing
party an opportunity to interrogate the witness on the state-
ment, as a prerequisite to the admissibility of extrinsic evidence
of the prior inconsistent statement. IRE 806 is more expansive
than IRE 613(b), however, for it applies to all admitted hearsay
statements, in addition to those admitted under IRE 801(d)(2).
Note, too, that the rule may have dispensed with the
requirement, as provided in People ex rel Korzen v. Chicago,
Burlington & Quincy R.R. Co., 32 Ill. 2d 554 (1065), that
when a prior inconsistent statement occurs before the taking
of a deposition offered in evidence at trial, a prerequisite for
the introduction of the prior inconsistent statement was that
the witness must have been confronted with the statement at
the deposition. See section (11) under the “Modernization”
discussion in the Committee’s general commentary on page 4
of this guide.
In People v. Fillyaw, 2018 IL App (2d) 150709, after a
retrial ordered by the appellate court, the two defendants were
convicted by a jury of rst-degree murder and two counts of
attempted murder. At the retrial, a key witness was unavailable
because the State was unable to procure his attendance, so
his testimony at the earlier trial was admitted pursuant to IRE
804(a)(5) and (b)(1). But the trial court denied the defendant’s
motion in limine to admit a notarized afdavit in which the
witness recanted his earlier testimony. Noting that “[n]o pub-
lished decision in Illinois has dealt with the admissibility of an
afdavit pursuant to Rule 806” (Fillyaw, at ¶ 56), the appellate
court applied that rule in holding that the trial court’s refusal to
admit the afdavit constituted reversible error. In its analysis,
the appellate court rst pointed out that the defendants had
ILLINOIS RULES OF EVIDENCE
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COMMENTARY
294RULE 805
ARTICLE VIII. HEARSAY
satised the requirements of IRE 901 by authenticating the
afdavit through the testimony of the notary. As part of its
analysis, the court noted that, even before the codication of
Illinois’ evidence rules, the appellate court in People v. Smith,
127 Ill. App. 3d 622, 630 (1984) had “recognized that, where
a statement of an absent declarant is properly admitted into
evidence under a hearsay exception, ‘the opposing party may
impeach such statement with a prior inconsistent statement by
the declarant.’” Id. at ¶ 46. The appellate court rejected the
State’s argument that the defendants had failed to satisfy the
requirements of section 115-10.1 and 115-10.2 of the Code
of Criminal Procedure of 1963, because the defendants had
“never sought admission of the afdavit as substantive evidence
under these statutory provisions.” Id. at ¶ 55. Pointing out
that the defendants sought admission of the afdavit only for
impeachment purposes, consistent with the provisions of IRE
806, and noting that error in denying admission of the afdavit
was not harmless because of the importance of the testimony
of the witness, the appellate court reversed the convictions and
remanded the case for retrial, during which the afdavit may be
admitted as a prior inconsistent statement.
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295
ARTICLE VIII. HEARSAY
RULE 807
Rule 807. Residual Exception
(a) In General. Under the following conditions, a
hearsay statement is not excluded by the rule against
hearsay even if the statement is not admissible under a
hearsay exception in Rule 803 or 804:
(1) the statement is supported by sucient
guarantees of trustworthiness—after considering the
totality of circumstances under which it was made
and evidence, if any, corroborating the statement;
and
(2) it is more probative on the point for which it
is oered than any other evidence that the proponent
can obtain through reasonable eorts.
(b) Notice. e statement is admissible only if the
proponent gives an adverse party reasonable notice
of the intent to oer the statement—including its
substance and the declarant’s name—so that the party
has a fair opportunity to meet it. e notice must be
provided in writing before the trial or hearing—or in
any form during the trial or hearing if the court, for
good cause, excuses a lack of earlier notice.
Author’s Commentary on Fed. R. Evid. 807
FRE 807 provides a residual exception for the hearsay rule.
It is intended to admit out-of-court statements deemed to be
trustworthy and probative but not admissible under a hearsay
exception under Rule 803 or 804. Understanding the rationale
for this federal rule’s amendment, effective December 1, 2019,
should assist in determining the underlying rationale for the
rule itself. We thus begin with the wording of the rule before
its amendment:
Rule 807. Residual Exception
(a) In General. Under the following circum-
stances, a hearsay statement is not excluded by
the rule against hearsay even if the statement is
not specically covered by a hearsay exception in
Rule 803 or 804:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which
it is offered than any other evidence that the
proponent can obtain through reasonable
efforts; and
(4) admitting it will best serve the purposes of
these rules and the interests of justice.
(b) Notice. The statement is admissible only if,
before the trial or hearing, the proponent gives
an adverse party reasonable notice of the intent
to offer the statement and its particulars, including
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
[fRe 807 noT AdoPTed�]
[Although it has not adopted this residual (some say
“catch-all”) exception to the hearsay rule, Illinois has
adopted statutes that seek to accomplish the same goal.
ose statutory provisions are discussed in the Author’s
Commentary on Non‑AdoptionofFed. R. Evid.807; Illi‑
nois Statutory Residual Hearsay Exceptions; Application
of Crawford’s “Testimonial Hearsay” in Criminal Cases.]
296RULE 807
ARTICLE VIII. HEARSAY
the declarant’s name and address, so that the party
has a fair opportunity to meet it.
Note that the current amended rule deletes two of the four
pre-amended conditions for admissibility. The deleted subdi-
visions are (a)(2), related to “evidence of a material fact,” and
(a)(4), related to serving “the purpose of these rules and the
interests of justice.” The amended rule retains subdivision (a)
(1), related to the requirement of trustworthiness, but it deletes
the equivalence standard and explains how “sufcient guaran-
tees of trustworthiness” are determined. The amended rule also
retains as subdivision (a)(2) what was (a)(3) in the pre-amended
rule, and does so without any alteration.
Providing a portion of the note on the amendment of Rule
807 by the federal Advisory Committee on Rules of Evidence
best explains the purposes of the amended rule and the reasons
for its amendment:
Courts have had difculty with the requirement
that the proffered hearsay carry “equivalent”
circumstantial guarantees of trustworthiness. The
“equivalence” standard is difcult to apply, given
the different types of guarantees of reliability, of
varying strength, found among the categorical
exceptions (as well as the fact that some hearsay
exceptions, e.g., Rule 804(b)(6), are not based
on reliability at all). The “equivalence” standard”
has not served to limit a court’s discretion to
admit hearsay, because the court is free to choose
among a spectrum of exceptions for comparison.
Moreover, experience has shown that some
statements offered as residual hearsay cannot
be compared usefully to any of the categorical
exceptions and yet might well be trustworthy.
Thus the requirement of an equivalence analysis
has been eliminated. Under the amendment, the
court is to proceed directly to a determination of
whether the hearsay is supported by guarantees of
trustworthiness.
The amendment specically requires the court to
consider corroborating evidence in the trustwor-
thiness enquiry. Most courts have required the
consideration of corroborating evidence, though
some courts have disagreed. The rule now provides
for a uniform approach, and recognizes that the
existence or absence of corroboration is relevant
to, but not dispositive of, whether a statement
is accurate. Of course, the court must not only
consider the existence of corroborating evidence
but also the strength and quality of that evidence.
The change to the trustworthiness clause does not
at all mean that parties may proceed directly to the
residual exception, without considering admis-
sibility of the hearsay under Rules 803 and 804.
Indeed Rule 807(a)(1) now requires the proponent
to show that the proffered hearsay is a statement
that “is not specically covered by a hearsay
exception in Rule 803 or 804.” Thus Rule 807
remains an exception to be invoked only when
necessary.
In deciding whether the statement is supported by
sufcient guarantees of trustworthiness, the court
should not consider the credibility of any witness
who relates the declarant’s hearsay statement in
court. The credibility of an in-court witness does
not present a hearsay question. To base admis-
sion or exclusion of a hearsay statement on the
witness’s credibility would usurp the jury’s role of
determining the credibility of testifying witnesses.
The rule provides that the focus for trustworthiness
is on circumstantial guarantees surrounding the
making of the statement itself, as well as any inde-
pendent evidence corroborating the statement.
The credibility of the witness relating the statement
is not a part of either enquiry.
The Committee decided to retain the requirement
that the proponent must show that the hearsay
statement is more probative than any other evi-
dence that the proponent can reasonably obtain.
This necessity requirement will continue to serve
to prevent the residual exception from being used
as a device to erode the categorical exceptions.
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297
ARTICLE VIII. HEARSAY
RULE 807
COMMENTARY CONTINUED
The requirements that residual hearsay must be
evidence of a material fact and that its admission
will best serve the purposes of these rules and
the interests of justice have been deleted. These
requirements have proved to be superuous in that
they are already found in other rules (see, Rules
102, 401).
Seventh circuit’S handling of pre-amended fre 807
In United States v. Moore, 824 F.3d 620 (7th Cir. 2016), the
Seventh Circuit noted that “[a] proponent of hearsay evidence
must establish ve elements in order to satisfy [Federal] Rule
[of Evidence] 807: ‘(1) circumstantial guarantees of trustwor-
thiness; (2) materiality; (3) probative value; (4) the interests
of justice; and (5) notice.’” The court also noted that it had
previously warned against the liberal and frequent utilization
of FRE 807 “lest the residual exception become the exception
that swallows the hearsay rule.” In Moore, which involved a
probation ofcer’s notes concerning a deceased person and
the probation records of the deceased person’s phone num-
bers—phone numbers frequently called by the defendant, who
claimed he was not close to the deceased person—the Seventh
Circuit held that the exception was particularly apt. Moore also
cites to other Seventh Circuit Court decisions that admitted
hearsay statements under FRE 807.
In United States v. Wehrle, 985 F.3d 549 (7th Cir. 2021),
the Seventh Circuit applied the ve elements required by
FRE 807 before its 2019 amendment. Pointing out that trade
inscriptions—such as “Made in China” and “Product of China”
afxed to such items as cameras, ash cards, and hard drives—
“are self‐authenticating, meaning they ‘require no extrinsic
evidence of authenticity in order to be admitted’” (Wehrle,
at 556, citing FRE 902), the Seventh Circuit held that such
inscriptions “exhibit a high level of trustworthiness, satisfying
Rule 807.” Id. In rejecting the defendant’s argument based on
the confrontation clause, the court held that the inscriptions are
nontestimonial because “[t]he inscriptions denoting an item’s
foreign origin are not created in preparation for a future judicial
proceeding. Rather, they are created to comply with federal
regulations requiring labels of place of origin for imported
products.” Id.
the takeaway
As the amended rule and the Advisory Committee’s note
make clear, two of the ve requirements provided by Moore for
Rule 807 application no longer exist. Although federal judges
can be expected to exercise appropriate discretion in applying
the rule, so that the residual exception does not swallow the
rule, there is no question that its amendment makes its appli-
cation less difcult.
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 807; Illinois Statutory Residual Hearsay Exceptions; Application of
Crawford’s “Testimonial Hearsay” in Criminal Cases
The Illinois Supreme Court “has specically declined to
adopt this [predecessor to FRE 807’s residual] exception” to
the hearsay rule. People v. Olinger, 176 Ill. 2d 326, 359 (1997).
Illinois, however, provides a number of statutory hearsay
exceptions, which may be referred to as “residual exceptions,”
for certain available and unavailable witnesses in both criminal
and civil cases. So, although Illinois has not codied FRE 807,
it has created a number of reliability-based residual exceptions
to the hearsay rule through statutory enactments.
CraWforD v. Washington
A number of Illinois criminal statutes provide for the admis-
sibility of hearsay statements where the out-of-court declarant
is unavailable. The admissibility of some of these statements
is open to question, however, because of the United States
Supreme Court decision in Crawford v. Washington, 541 U.S.
36 (2004). In Crawford, the Supreme Court repudiated the
“indicia of reliability” standard set forth in Ohio v. Roberts, 448
U.S. 56 (1980), which had held that hearsay statements were
admissible where indicia of reliability were present if the evi-
dence fell within a rmly rooted hearsay exception or bore par-
ticularized guarantees of trustworthiness. Crawford held that,
rather than the indicia of reliability test, the Sixth Amendment
confrontation clause prohibits admission of “testimonial” state-
ments when the out-of-court declarant does not testify or the
298RULE 807
ARTICLE VIII. HEARSAY
defendant did not have an opportunity to cross-examine the
unavailable declarant in a prior proceeding. Further discussion
of Crawford and its progeny is provided infra.
illinoiS StatuteS that allow reSidual hearSay exceptionS in
criminal caSeS
Numerous Illinois statutes allow the admission of what
would normally be hearsay statements but, depending on the
statutory language, are referred to as either not hearsay or an
exception to the hearsay rule. Most of the statutes are in the
Code of Criminal Procedure of 1963. They include:
• Section 115‑10 (725 ILCS 5/115-10; provided at
Appendix U and addressed, infra, under the three
separate headings of People v. Cookson, People
v. Kitch, and Other Decisions Applying Section
115-10), where a child under the age of 13 or a
person who is mentally retarded is the victim of
the types of physical or sexual acts enumerated in
the statute.
Section 115-10 has two subdivisions that merit special
attention. Section 115‑10(a)(1) allows, as an exception to the
hearsay rule, “testimony by the victim of an out of court state-
ment made by the victim that he or she complained of such
act to another.” This section creates a hearsay exception when
the victim testies to what he or she previously said about the
act. It fully accommodates Crawford’s requirements, because
the declarant/victim testies about his or her own out-of-court
statements and is subject to cross-examination about them.
Section 115‑10(a)(2), on the other hand, provides for a
hearsay exception for “testimony of an out of court statement
made by the victim describing any complaint of such act or
matter or offense which is the subject of a prosecution for a
sexual or physical act against that victim.” This section antici-
pates testimony from someone other than the victim—someone
who was told about the act by the victim or who heard the
victim’s statement. It creates a hearsay exception where the
victim does not testify—provided that, as required by section
115-10(b)(2)(B), the victim “is unavailable as a witness and
there is corroborating evidence of the act which is the subject
of the statement.”
Note, also, that section 115‑10(c) requires a jury instruction
(provided by IPI Criminal 4th No. 11.66) when a statement is
admitted under this section. See People v. Mitchell, 155 Ill. 2d
344, 353-54 (1993) (holding that failure to give the instruction,
combined with the error in the trial court’s not determining
reliability of the statements, “together with the serious con-
tradictions in the testimony of [the victim],” resulted in plain
error). But see also People v. Jackson, 2015 IL App (3d) 140300,
¶¶ 50-57, where the defendant had not objected to the trial
court’s failure to give the required instruction, the appellate
court cited People v. Sargent, 239 Ill. 2d 166, (2010), in holding
that, because the defendant had not contended that review
was required under the rst prong of the plain error test and
review was not warranted under the second prong of that test,
the failure to give the required cautioning instruction did not
constitute error.
• Section 115‑10.2 (725 ILCS 5/115-10.2; provided
at Appendix O), where a witness refuses to testify
despite a court order to do so and the prior state-
ments were made under oath and were subject to
cross-examination by the opposing party in a prior
trial, hearing, or other proceeding.
• Section 115‑10.2a (725 ILCS 5/115-10.2a;
provided at Appendix P), where a declarant is
deemed to be unavailable to testify in a domestic
violence prosecution. For a relevant decision on
this statute, see People v. Burnett, 2015 IL App (1st)
133610 (holding that the victim of the defendant’s
violation of an order of protection was unavailable
as a witness under the statute because she refused
to answer some questions, thus satisfying the
statute’s requirement for a hearsay exception, and
further holding that the victim was available under
Crawford because she answered both preliminary
questions as well as questions about the offense,
thus satisfying sixth amendment confrontation
clause requirements). For another relevant deci-
sion, see People v. Busch, 2020 IL App (2d) 180229
(reasoning that the requirements of the statute were
satised, but noting that the statutory requirement
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299
ARTICLE VIII. HEARSAY
RULE 807
of “circumstantial guarantees of trustworthiness”
in section 115-10.2(a) had been designed to com-
port with the requirements of Ohio v. Roberts, 448
U.S. 56 (1980), which was repudiated by Crawford
v. Washington, 541 U.S. 36 (2004), and holding
that, though the statements of the alleged victim
to one person satised Crawford requirements,
the admission of the alleged victim’s statements
to another witness and her statements to a 911
operator were testimonial statements, which were
improperly admitted and not harmless error, and
thus resulted in the reversal of the defendant’s
conviction and a remand for a new trial).
• Section 115‑10.3 (725 ILCS 5/115-10.3; provided
at Appendix Q), where a declarant is an elder adult
who is a victim of certain specied offenses and
is unable to testify because of physical or mental
disability.
• Section 115‑10.4 (725 ILCS 5/115-10.4; provided
at Appendix R), where the declarant is deceased
and the prior statements were made under oath
at a trial, hearing, or other proceeding and the
declarant was subject to cross-examination by the
opposing party.
• Section 106‑B‑5 (725 ILCS 5/106-B-5) authorizes
the trial court to allow an intellectually disabled
person or an under-18-years-of-age victim of
certain sex offenses, who may suffer serious emo-
tional distress from testifying in the defendant’s
presence in the courtroom, to provide closed-cir-
cuit testimony. In Maryland v. Craig, 497 U.S. 836,
851 (1990) the U.S. Supreme Court held that such
out-of-court testimony does not impinge on the
confrontation clause. Later, in People v. Dean, 175
Ill. 2d 244, 254 (1997), the Illinois Supreme Court
held that section 106-B-1 was constitutional.
Still later, Crawford v. Washington, 541 U.S. 36
(2004) did not mention Craig when if provided
a different framework for confrontation clause
analysis. This time-line of cases has resulted in an
appellate court decision that expressed concerns
about limitations on the rights of defendants, but
also a recognition that only the Illinois Supreme
Court may alter its prior ruling. See People v. Pope,
2020 IL App (4th) 180773 ¶¶ 34-47, where the
appellate court expressed those concerns, but held
that “[u]nder prevailing law, the trial court did
not abuse its discretion by allowing the children
[of various sexual offenses] to testify by use of a
videoconferencing system, nor did the trial court
err by allowing support persons to be present with
the children while they testied.” Id. at ¶ 47. See
also People v. Rajner, 2021 IL App (4th) 180505,
where the special concurring justice, who was the
author of the Pope decision, wrote in concurrence
“in the hope that the Illinois Supreme Court might
reconsider its holding in Dean. Rajner, at ¶ 34.
illinoiS civil StatuteS and caSeS unaffected by CraWforD
Section 2‑18(4)(c) of the Juvenile Court Act of 1987 (705
ILCS 405/2-18(4)(c)) allows hearsay statements in civil cases
involving abused or neglected minors. It states:
“Previous statements made by the minor relating to
any allegations of abuse or neglect shall be admis-
sible in evidence. However, no such statement, if
uncorroborated and not subject to cross-examina-
tion, shall be admissible in evidence.”
For a decision involving application of that statute and a dis-
cussion of other cases, see In re J.L., 2016 IL App (1st) 152479
(holding that, because abuse or neglect actions are civil in
nature, they are not subject to the confrontation requirements
of Crawford, and noting that the supreme court in In re A.P., 179
Ill. 2d 184, 196 (1997), has interpreted the statute to require
either cross-examination or corroboration, but not both).
In re An. W., 2014 IL App (3d) 130526, applied the In re A.P.
interpretation of section 2-18(4)(c). In that case, three children
initially reported that their father had sexually abused them,
but at the adjudicatory hearing on the State’s abuse and neglect
petitions they testied that they had not made the statements
or that their prior statements had been lies. The appellate
court held, consistent with In re A.P., that corroboration was
COMMENTARY CONTINUED
300RULE 807
ARTICLE VIII. HEARSAY
not required because all three had testied at the adjudicatory
hearing and the trial court’s determination of abuse and neglect
was not against the manifest weight of the evidence.
In In re Natalia O., 2019 IL App (2d) 181014, the appellate
court applied In re A.P. and In re An. W. in holding that prior
statements by the respondent’s daughter concerning sexual
abuse, which she later recanted through her testimony at trial,
were properly admitted in evidence and could serve as the
basis for the trial court’s ndings of abuse and neglect without
the need for corroboration.
Section 8‑2701 of the Code of Civil Procedure (735 ILCS
5/8-2701; provided at Appendix S) has provisions involving an
unavailable elder adult, which are similar to those in section
115-10.3 of the Code of Criminal Procedure (provided at
Appendix Q). Consistent with statutes that apply to civil cases,
the statute is unaffected by Crawford, because Crawford is
limited to an accused’s constitutional right to confrontation,
and does not address evidentiary rules related to hearsay.
Section 8‑2601 of the Code of Civil Procedure (735 ILCS
5/8-2601; provided at Appendix T) has provisions similar to
section 115-10 of the Code of Criminal Procedure (provided at
Appendix U) that are applicable to a child under the age of 13.
That statute is unaffected by the Crawford decision because,
like section 8-2701 of the Code of Civil Procedure, it applies
only to civil proceedings.
Regarding Order of Protection cases, in Arika M. v.
Christopher M., 2019 IL App (4th) 190125, the appellate court
pointed out that “the different districts of the Illinois Appellate
Court disagree on the statute that governs the admissibility of
a child’s out-of-court statements regarding abuse in order of
protection cases when the alleged abuser is a parent.” Id. at
¶ 15. The court reasoned that the two possible statutes related
to such cases are section 606.5(c) of the Illinois Marriage and
Dissolution Act (750 ILCS 5/606.5(c)) and section 8-2601 of
the Code of Civil Procedure (735 ILCS 5/8-2601). Id. It cited
Daria W. v. Bradley W., 317 Ill. App. 3d 194 (3d Dist. 2000);
Countryman v. Racy, 2017 IL App (3d) 160379; and In re
Marriage of Gilbert, 355 Ill. App. 3d 104 (1st Dist. 2004) as
decisions that applied the Dissolution Act in such cases; and In
re Marriage of Flannery, 328 Ill. App. 3d 602 (2d Dist. 2002),
and Trinidad C. v. Augustin L., 2017 IL App (1st) 171148, as
decisions that applied the Code of Civil Procedure. Agreeing
with the reasoning in Flannery, the court held that the Code of
Civil Procedure’s section 8-2601 is the applicable statute. Id.
at ¶ 22. Noting that section 8-2601 is the civil counterpart to
section 115-10 of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-10; see Appendix U) and that like the criminal stat-
ute it applies in both bench and jury trials, the court remanded
the case to the circuit court because the three minor children
whose out-of-court testimony had been admitted were old
enough to testify in court, but the trial court had not complied
with section 8-2601’s requirement to determine whether they
were unavailable to testify.
Regarding Discharge Hearings, see People v. Waid, 221 Ill.
2d 464 (2006) (holding that a discharge hearing under sections
104-23 and 104-25 of the Code of Criminal Procedure (725
ILCS 5/104-23, 104-25) is civil in nature, and thus “section
104-25(a), which allows the admission of hearsay or afdavit
evidence at a discharge hearing, does not violate the confron-
tation clause,” nor does it violate the due process clause). Two
relevant appellate court cases are People v. Orengo, 2012 IL
App (1st) 111071 (allowing admission in discharge hearing
of outcry statements about criminal sexual misconduct made
to two persons by the three-year-old victim), and People v.
Lewis, 2021 IL App (3d) 180259 (applying Waid and Orengo,
in allowing admission in discharge hearing of the deposition of
an elderly witness with health problems).
Significance of theSe StatuteS
The statutes that provide hearsay exclusions or exceptions,
not otherwise provided by the codied evidence rules, represent
the legislature’s valid exercise of its ability to create evidence
rules. Such rules are subject to codication and amendment.
See People v. Dabbs, 239 Ill. 2d 277, 293 (2010) ( holding that
the “propensity rule” in Rule 404(b) is of common law origin
and not of constitutional magnitude, and therefore subject to
revision).
In civil cases, except for substantive due process consid-
erations, there is no constitutional bar to creating exclusions
or exceptions to the hearsay rule by statute, because the con-
frontation clause does not apply to such cases and because the
COMMENTARY CONTINUED
301
ARTICLE VIII. HEARSAY
RULE 807
legislature can create and amend evidence rules. In criminal
cases, however, the confrontation clause does apply, and out-
of-court statements deemed to be “testimonial” are barred
under Crawford.
The signicance of the statutes that provide exclusions or
exceptions to the hearsay rule in criminal cases is that they
may provide a legitimate basis for the admission of out-of-court
statements—because they eliminate the hearsay bar—as long
as they satisfy the requirements of the confrontation clause. For
example, when a witness, consistent with a statute that allows
the substantive admission of hearsay under a hearsay exception
or exclusion, gives testimony reciting her own prior statements
that are consistent with her testimony at the proceeding, an
objection that prior consistent statements are barred by the
hearsay rule should fail, because the out-of-court declarant is
the witness who is subject to cross-examination on her out-of-
court statements, thus satisfying one of Crawford’s exceptions
for the prohibition related to “testimonial statements.” For a
close but not identical analogy, see People v. Applewhite, 2016
IL App (4th) 140588 (holding that section 115-10 of the Code
of Criminal Procedure creates an exception to IRE 613(c)’s
prohibition of the substantive application of prior consistent
statements).
In sum, in criminal cases, these statutes, which might be
referred to as residual exceptions to the hearsay rule, eliminate
the hearsay obstacle, but they still require adherence to the
confrontation clause.
CraWforD and itS progeny
If the statements in the criminal statutes listed supra are
deemed to be “testimonial statements” (a term not fully dened
in Crawford, but one that certainly refers to statements made
in response to police interrogation or police questioning “to
establish or prove past events potentially relevant to later
criminal prosecution” (see Davis v. Washington, 547 U.S. 813,
822 (2006)), and, in the words of Crawford, 541 U.S. at 68,
“to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial”), the Crawford decision renders the
hearsay statements of each of the non-testifying declarants in
each of the statutes inadmissible, pursuant to the constitutional
protection afforded by the confrontation clause (not by the
rules of evidence related to hearsay), unless the out-of-court
declarant is present or the defendant had an opportunity to
cross-examine the unavailable declarant in a prior proceeding.
In Crawford, the prosecutor introduced a recorded statement
that the defendant’s wife had made during police interrogation,
as evidence that the defendant’s stabbing was not in self-de-
fense in an assault and attempted murder prosecution. But the
defendant’s wife did not testify at trial because of the State of
Washington’s marital privilege. Following a thorough review of
the confrontation clause and the evils it was designed to pre-
vent, the U.S. Supreme Court held that, for reasons referenced
above, the statements were testimonial hearsay and improperly
admitted in violation of that clause.
Davis v. Washington; hammon v. inDiana
After Crawford, in separate but consolidated cases, the
U.S. Supreme Court decided cases that provided examples
of both testimonial and nontestimonial statements. In Davis
v. Washington, 547 U.S. 813 (2006), the Court held that the
declarant’s statements in a 911 call (in which she described
the defendant’s contemporaneous violence) were nontestimo-
nial—as descriptive of an ongoing emergency and not solely of
past events—and thus admissible, despite the absence of the
declarant (defendant’s former girlfriend) at the trial.
In contrast, in a companion case decided along with Davis
(Hammon v. Indiana), the defendant’s wife, while separated
from her husband in a separate room of their home, informed
police of the domestic abuse she had just suffered at his hands.
This was deemed not to have satised the “ongoing emergency”
exception, but merely a narrative about past events, and thus
constituted testimonial hearsay that was not admissible when
the wife did not appear at her husband’s trial.
From the holdings in Davis/Hammon, the Supreme Court
articulated these general principles:
“Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of
the interrogation is to enable police assistance to
meet an ongoing emergency. Bur they are testimo-
nial when the circumstances objectively indicate
that there is no such ongoing emergency, and
COMMENTARY CONTINUED
302RULE 807
ARTICLE VIII. HEARSAY
that the primary purpose of the interrogation is to
establish or prove past events potentially relevant
to later criminal prosecution.” Davis, 547 U.S. at
822.
miChigan v. bryant
Later, in Michigan v. Bryant, 562 U.S. 344 (2011), the Court
applied the “ongoing emergency” doctrine in a case where
police questioned the mortally wounded victim, who had been
shot and was found in a gas station parking lot. The victim’s
statements, which included naming the defendant, in response
to police questioning about who shot him and where and how
it happened, were deemed to be nontestimonial because they
had the “primary purpose” of enabling police to meet an ongo-
ing emergency caused by the potential danger to the victim, to
the police, and to others because of the violence inicted by an
unapprehended person with a gun.
For a recent Seventh Circuit decision applying the ongoing
emergency doctrine in afrming the denial of habeas corpus
from an Illinois Appellate Court decision, see Damon Goodloe
v. Brannon, 4 F.4th 445 (7th Cir. 2021), where the shooting
victim who later died at the hospital told police that Damon
had shot him and later identied the defendant as the shooter
when the defendant was brought to him while he was in an
ambulance.
ohio v. Clark
In Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173 (2015),
another U.S. Supreme Court discussion of “testimonial
hearsay,” statements of the three-year-old victim to preschool
teachers that the defendant was responsible for his bruises
were held not to have violated the confrontation clause and
to be admissible. Stating that “the primary purpose test is a
necessary, but not always sufcient, condition for the exclusion
of out-of-court statements under the Confrontation Clause”
(id. at 576 U.S. at 246), while declining “to adopt a rule that
statements to individuals who are not law enforcement ofcers
are categorically outside the Sixth Amendment” (id.), the Court
held that the “primary purpose” of the conversation (i.e., the
purpose of the interrogator and that of the out-of-court declar-
ant) were not primarily intended to be “testimonial” (i.e., the
statements were not given with the primary purpose of creating
an out-of-court substitute for trial testimony). In holding that the
victim’s out-of-court statements were properly admitted, the
Court held that the fact that the victim did not testify because
he was found incompetent to do so, or that the teachers who
questioned him may have been subject to mandatory reporting
requirements, did not affect the admissibility of the statements.
Two statements of the Court about out-of-court statements
are noteworthy, and may be harbingers of later decisions:
“Statements by very young children will rarely, if ever, impli-
cate the Confrontation Clause” (id. at 247-48), and “Statements
made to someone who is not principally charged with uncov-
ering and prosecuting criminal behavior are signicantly less
likely to be testimonial than statements given to law enforce-
ment ofcers.” Id. at 249.
Seventh circuit analySiS of evolution of “teStimonial StatementS”
Since CraWforD
The U.S. Supreme Court has not provided a denitive
denition of when “testimonial statements” are considered
violative of the defendant’s right to confrontation. But its deci-
sions—those provided supra and infra—have provided some
answers. For an insightful Seventh Circuit decision tracking
the Court’s evolution in answering that important question, see
United States v. Norwood, 982 F.3d 1032 (7th Cir. 2020), at
1042-1051.
“teStimonial” StatementS related to police queStioning
Davis (fortied by Bryant and Clark), provides insight as
to when statements made to police ofcers are testimonial or
nontestimonial. The quote from Davis deserves repetition:
“Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of
the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that
there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish
or prove past events potentially relevant to later
criminal prosecution.” Davis, 547 U.S. at 822.
Consistent with this statement from Davis is the appellate
court decision in People v. Dobbey, 2011 IL App (1st) 091518
COMMENTARY CONTINUED
303
ARTICLE VIII. HEARSAY
RULE 807
(holding that statements identifying the shooter, made to a
witness by the deceased victim shortly after the victim had
been shot in the chest, were nontestimonial and thus not
subject either to the Crawford analysis or exclusion under the
confrontation clause).
For a discussion of the Crawford-related U.S. Supreme
Court’s decisions in Melendez-Diaz and Bullcoming, and the
Illinois Supreme Court’s decision in People v. Leach, 2012 IL
111534, see the Author’s Commentary on Ill. R. Evid. 803(8);
and for a discussion of the U.S. Supreme Court’s decision in
Williams v. Illinois, see the Author’s Commentary on Ill. R. Evid.
703. For summaries of other relevant cases, see the discussions
immediately following and those at the end of this Commentary.
PeoPle v. steChly
In People v. Stechly, 225 Ill. 2d 246 (2007), the Illinois
Supreme Court endeavored to determine what constituted a
“testimonial statement” under Crawford’s confrontation-clause
analysis. The court concluded that such a statement has two
components: (1) solemnity—the statement “must be made
in solemn fashion,” and (2) “the statement must be intended
to establish a particular fact” about events that previously
occurred. The court concluded that statements produced by
police interrogation about past events and statements made by
persons without police interrogation, but with the intent of hav-
ing them used in prosecution, qualify as testimonial. In deter-
mining the component involving the intent of the declarant,
the court held that a person’s age and extent of understanding
should be “among the circumstances potentially relevant to
evaluating whether the objective circumstances of the state-
ment would have led a reasonable declarant to understand that
his or her statement could be used in a subsequent prosecution
of the defendant.” In applying those considerations to the case
at bar—involving sexual offenses on a ve-year-old girl who
was determined to be unavailable as a witness for trial because
of the risk of trauma to her—the court held that (1) the girl’s
statements to her mother were admissible as nontestimonial
and in compliance with the requirements of section 115-10
of the Code of Criminal Procedure (the statute is at Appendix
U in this guide); and (2) the girl’s statements given after those
to her mother to two persons described as “mandated report-
ers” pursuant to statute, were testimonial and were therefore
improperly admitted into evidence.
in re rolanDis g.
In In re Rolandis G., 232 Ill. 2d 13 (2008), a juvenile defen-
dant was adjudicated a delinquent based on an aggravated
criminal sexual assault offense on a six-year-old boy. When
asked at trial about the events that occurred on the day in ques-
tion, the boy “resolutely refused to respond,” and the trial court
found him unavailable as a witness. Pursuant to section 115-10
of the Code of Criminal Procedure (see Appendix U), the trial
court allowed into evidence statements the boy had made to his
mother and later to a police ofcer, and a videotaped interview
with a child advocate, in which a police detective was present.
On appeal, the appellate court ruled that the statement to the
mother was nontestimonial, but that the other two statements
had been improperly introduced because they were testimo-
nial. On review by the supreme court, the State accepted the
appellate court’s rulings regarding the nontestimonial nature
of the statement to the mother and the testimonial nature of
the statement to the police ofcer. The primary issue before
the supreme court, then, concerned the nature of the video-
taped statement. Applying the standards provided in Stechly,
the supreme court held that the boy’s videotaped statements
during the interview conducted by the child advocate that was
witnessed by the police detective was testimonial and therefore
improperly admitted. Nevertheless, based on the overwhelm-
ing evidence of the defendant’s guilt, the court found that the
error was harmless beyond a reasonable doubt.
in re branDon P.
In In re Brandon P., 2014 IL 116653, the supreme court
applied In re Rolandis G. in holding that out-of-court statements
by a three-year-old were improperly admitted under section
115-10 (see Appendix U), after reasoning that the three-year-
old was unavailable to testify because of her youth and her
fear, and noting that she “could barely answer the trial court’s
preliminary questions, and then completely froze when the
State attempted to begin its direct examination of her.” Brandon
P. , at ¶ 47. As in In re Rolandis G., supreme the court held that,
because of the other evidence of the defendant’s guilt, the error
was harmless beyond a reasonable doubt.
COMMENTARY CONTINUED
304RULE 807
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
PeoPle v. riChter
People v. Richter, 2012 IL App (4th) 101025, is notewor-
thy because it addresses issues related to the admissibility of
hearsay evidence allowed by statute when the out-of-court
declarant is unavailable, as well as issues related to a crimi-
nal defendant’s constitutional right of confrontation. At issue
in Richter was the propriety of the admission in evidence of
numerous hearsay statements of the deceased victim made to
friends, family members, and coworkers. These statements of
the deceased victim (about the defendant’s mood swings and
his abuse of her, the defendant’s threats to kill her, and that
she was leaving him and taking their children with her) were
admitted in evidence under section 115-10.2a of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-10.2a; provided
at Appendix P) during the defendant’s jury trial for murdering
the victim, the mother of his two children with whom he had
a 17-year-live-in relationship. Section 115-10.2a allows admis-
sibility of prior statements made by an unavailable witness in
a domestic violence prosecution, without the requirement of a
prior opportunity for cross-examination by the defendant.
On appeal, the appellate court rst found that the victim’s
statements satised admissibility requirements under the stat-
ute. The court then considered whether the statements were
properly admitted under Crawford’s confrontation-clause anal-
ysis. It analyzed the United States Supreme Court’s holdings in
the Crawford and Davis decisions, the conclusions of various
legal scholars and evidence commentators, and out-of-state
court decisions.
Based on these considerations, it held that the victim’s
hearsay statements did not implicate constitutional concerns
and that they were therefore admissible, concluding that the
victim’s statements were not “testimonial hearsay” because
they did not possess the solemnity of statements made to law
enforcement investigators, and stating, “we conclude that
absent government involvement in eliciting or receiving an
accusatory hearsay statement, that statement does not consti-
tute hearsay” (Richter, at ¶ 135) *** “Simply put, according to
United States Supreme Court doctrine, [the victim’s] statements
at issue in this case did not constitute testimonial hearsay
because there was no government involvement in eliciting or
receiving them” (Id.at ¶ 156; see also ¶ 135).
The Richter court’s holding that governmental involvement
in obtaining statements from a witness is fundamental to
determining whether the statements are “testimonial hearsay”
represents the clearest expression of that principle by an
Illinois reviewing court. Whether the United States Supreme
Court and the Illinois Supreme Court share this view needs to
be determined. So far, neither Ohio v. Clark, the latest U.S.
Supreme Court decision on the issue, nor People v. Barner,
2015 IL 116949, the latest Illinois Supreme Court decision
on the issue of testimonial statements, has adopted that view.
On the contrary, the reasoning in those cases appears to be
inconsistent with that in Richter.
PeoPle v. Cleary
In People v. Cleary, 2013 IL App (3d) 110610, the appellate
court considered whether statements made by the victim to
friends and her daughter, that her husband said he would kill
her if she left him, were properly admitted in evidence against
her husband in his prosecution for her murder, under section
115-10.2a of the Code of Criminal Procedure (see Appendix
P). Concluding that the victim’s statements did not bear the
solemnity required by the supreme court in Stechly to qualify
as “testimonial hearsay,” the appellate court held both that the
statements were properly admitted and that the statute was not
unconstitutional as applied. The court, however, refused to
apply the per se rule applied by Richter, which rendered as
testimonial only statements elicited by or made to governmen-
tal entities.
PeoPle v. Cookson
Section 115-10 of the Code of Criminal Procedure of 1963
(725 ILCS 5/115-10; available at Appendix U) provides an
example of a statute that partially complies with Crawford and
partially may not. It allows admission of hearsay statements
made by a victim of physical or sexual acts who is either a child
under the age of 13 or a mentally retarded person.
Subdivision 115-10(b)(2)(A) (see Appendix U) allows
admissibility of a hearsay statement of the victim’s complaint
about the act when the victim testies about it. In People v.
Cookson, 215 Ill. 2d 194 (2005), where the youthful victim
305
ARTICLE VIII. HEARSAY
RULE 807
of sexual offenses testied at trial, the Illinois Supreme Court
upheld the statute in response to the defendant’s contentions
premised on Crawford, and also approved the admission of
the victim’s out-of-court statements about the offenses made to
others, including to a DCFS investigator, police ofcers, and a
foster parent.
PeoPle v. kitCh
On the other hand, section 115-10(b)(2)(B) (see Appendix
U) allows (in the prefatory language of section 115-10(a)(2))
“testimony of an out of court statement made by the victim
describing any complaint of such act or matter or detail per-
taining to any act which is an element of an offense which
is the subject of the prosecution,” when the victim (in the
language of section 115-10(b)(2)(B)) “is unavailable as a
witness and there is corroborative evidence of the act which
is the subject of the statement,” and (under section 115-10(b)
(1)) the court nds that the statement is reliable. In People
v. Kitch, 239 Ill. 2d 452 (2011), in rejecting the defendant’s
contention that section 115-10 is facially unconstitutional, but
in discussing section 115-10(b)(2)(B) (which was not directly
under review in the case), the supreme court pointed out that
Crawford “requires something different: where the declarant is
unavailable, the defendant must have had a prior opportunity
for cross-examination.”
other deciSionS applying Section 115-10
Section 115-10 of the Code of Criminal Procedure of 1963
(725 ILCS 5/115-10; provided at Appendix U), which has been
referred to numerous times in this commentary, provides for an
exception to the hearsay rule for statements made by children
under the age of 13 (or “a person with a moderate, severe, or
profound intellectual ability”) who are the victims of numerous
listed physical and sexual offenses. It deserves special atten-
tion, because of its likely application in many offenses against
children under the age of 13.
People v. Applewhite, 2016 IL App (4th) 140588, is illus-
trative. In that case, shortly after the offense, the 11-year-old
victim informed her mother and a nurse and two police ofcers
of the sex act the defendant committed on her. Her detailed
description of the act, as well as two other previous acts
involving the defendant, were testied to by her and by those
who had interviewed her; and a videotaped police interview in
which she described the sex act and the two previous similar
acts was played for the jury.
In approving the admission of this evidence, the appellate
court rst rejected the defendant’s contention that section 115-
10, in allowing the admission of prior consistent statements of
witnesses, conicts with IRE 613(c) which denies substantive
admission of such statements. The court held that section 115-
10 specically provides for a hearsay exception and is thus an
exception to that rule. The court then rejected the defendant’s
contention that the evidence admitted was unnecessarily
cumulative, specically rejecting “any notion that current
Illinois jurisprudence requires section 115-10 to be narrowly
construed.” Applewhite, at ¶ 73. Noting that the trial court had
complied with the statute’s requirement to conduct a hearing
and had determined “that the time, content, and circumstances
of the statement provide[d] sufcient safeguards of reliability”
(id. at ¶ 74; citing 725 ILCS 115-10(b)(1)), the court afrmed
the defendant’s conviction.
In People v. Rottau, 2017 IL App (5th) 150046, the appellate
court approved the admission of videotaped interviews of an
under-13-years-of-age girl concerning sexual activities with her
stepfather, under section 115-10, where the girl testied about
them when she was 18 years of age.
In People v. Dabney, 2017 IL App (3d) 140915, the defen-
dant, a family friend, was charged with committing four sepa-
rate acts of sexual conduct against a 10 year-old girl. A forensic
interviewer with Child Network conducted a video-recorded
interview of the girl, who testied at trial about two of the acts
of sexual conduct, but said nothing about the other two acts.
The video recording of the girl’s interview, which contained
information about all four of the sexual acts, was admitted into
evidence under section 115-10. The defendant was convicted
of all four of the acts and sentenced to concurrent terms of
imprisonment. The issue on appeal, based on the defendant’s
contention that his constitutional rights under the confrontation
clause were violated, concerned the propriety of the admission
of the video recording as to the two acts about which the vic-
tim had not testied, as well as the convictions for those two
offenses.
COMMENTARY CONTINUED
306RULE 807
ARTICLE VIII. HEARSAY
COMMENTARY CONTINUED
Because the defendant had not objected to the admission
of the video recording, the appellate court engaged in plain
error review, which required an initial determination as to
whether error had occurred. Noting that the video contained
information about the four sexual acts, citing numerous appel-
late court decisions that had addressed similar circumstances
and reached the same conclusion, and based on its reasoning
that the defendant had an opportunity for effective cross-ex-
amination which did not guarantee effectiveness in the fashion
that a defendant may desire, the appellate court held that the
defendant’s confrontation rights had not been violated. The
convictions for the four separate charges were afrmed.
In People v. Lee, 2020 IL App (5th) 180570, the issue
addressed by the appellate court was whether it had jurisdic-
tion under S. Ct. R. 604(a)(1) to rule on the State’s interlocu-
tory appeal of the trial court’s order excluding admission of
statements, sought to be admitted under section 115-10(a), of
the defendant’s three young daughters about his alleged sexual
abuses. Reasoning that the trial court’s order did not have the
effect of suppressing evidence, as required by Rule 604(a)(1),
the court dismissed the appeal based on lack of jurisdiction
because the State had acknowledged that the evidence was
admissible by other means, specically, the testimony of the
three daughters.
The appellate court distinguished its prior holding under
section 115-10(a), in which it reversed excluded evidence,
in People v. Brindley, 2017 IL App (5th) 160188, where the
suppressed evidence was an audio-video recording of the
very drug transaction at issue, rather than a statement about
the transaction. It also distinguished the holding in People v.
Bowen, 183 Ill. 2d 103 (1998), where, on the direct appeal of
the defendant, the supreme court afrmed the admission of the
videotaped statement of the three-year-old victim of a sexual
offense in addition to her trial testimony. In this interlocutory
appeal by the State, based on Rule 604(a), the appellate court
stated the jurisdictional issue and its response as follows:
“The jurisdictional question, however, is not
whether evidence is admissible, how reliable the
evidence is, or what purpose it serves; the question
is simply whether the ruling appealed precludes
the State from presenting information to the jury by
any means. See K.E.F., 235 Ill. 2d at 540; Brindley,
2017 IL App (5th) 160189, ¶ 16. In this case, the
answer to that question is no.” Lee, at ¶ 13.
admiSSibility of “nonteStimonial” StatementS
Despite the limitations on admitting “testimonial” state-
ments, when out-of-court statements are deemed to be
“nontestimonial” section 115-10 (see Appendix U) allows
admissibility when its provisions are satised, even when the
minor witness does not testify. An example of a case allowing
such out-of-court statements is In re Kenneth W, 2012 IL App
(1st) 102787, ¶¶ 64-72 (holding out-of-court statements made
to her father by a four-year-old girl, who was a victim of sex
offenses, were admissible under section 115-10 because they
were both reliable and corroborated, and they were found to
be nontestimonial and thus did not violate Crawford).
PeoPle v. melChor; in re e.h.—determining evidentiary iSSueS
before conStitutional queStionS
Although it is a rule that has primary signicance in courts
of review, because it also is relevant to the process that should
be followed by a trial court in determining admissibility of
evidence that might have a constitutional impediment, it is
important to be aware of the supreme court’s mandate that
“[w]hen a court is asked to evaluate the admission of out-of-
court statements into evidence, the rst step is determining
whether the statement passes muster as an evidentiary matter.”
People v. Melchor, 226 Ill. 2d 24, 34 (2007), citing In re E.H.,
224 Ill. 2d 172, 179 (2006) (emphasis in original). In Melchor,
the supreme court went on to state:
“If the proponent seeks to admit the statement pur-
suant to a statutory hearsay exception, the court
must evaluate the statement to determine whether
it meets the statute’s requirements. We reasoned
[in E.H.]: ‘Only once the statement has rst been
found admissible as an evidentiary matter should
constitutional objections—including Crawford-
based confrontation clause claims—be dealt
with. [Citations.] This is the only analytical “ow
chart” that comports with the rule that courts must
avoid considering constitutional questions where
307
ARTICLE VIII. HEARSAY
RULE 807
COMMENTARY CONTINUED
the case can be decided on nonconstitutional
grounds.’” Melchor, 226 Ill. 2d at 34, citing E.H.,
224 Ill. 2d at 179-80.
additional author’S commentarieS related to CraWforD
For more on Crawford’s application of the confrontation
clause to “testimonial statements,” in addition to those cases
discussed above and below, see the Author’s Commentary on
Ill. R. Evid. 703 related to Williams v. Illinois, and the Author’s
Commentary on Ill. Rs. Evid. 803(6) and 803(8) related to
People v. Leach concerning autopsy reports as business records.
Seventh circuit’S holding regarding trial court’S diScretionary
limitationS on croSS-examination conSiStent with confrontation
clauSe
In United States v. Groce, 891 F.3d 260 (7th Cir. 2018),
the Seventh Circuit had this to say about the district court’s
discretion in limiting cross-examination within the bounds of
the confrontation clause:
“A court has broad discretion to limit cross,
within the Confrontation Clause’s bounds. The
Confrontation Clause guarantees a defendant
an opportunity for effective cross-examination,
but there is no guarantee of cross-examination
to whatever extent the defense might wish. We
review a limit on cross de novo if it directly
implicates the Confrontation Clause’s core values;
otherwise we review for abuse of discretion.
Impeaching a witness is a core value. Exposing a
witness’s motivation, biases or incentives for lying
is a core value. But once a trial court permits a
defendant to expose a witness’s motivation, it is of
peripheral concern to the Sixth Amendment how
much opportunity defense counsel gets to hammer
that point home to the jury. The Confrontation
Clause does not give a defendant a boundless right
to impugn the credibility of a witness. The court
has wide latitude to impose reasonable limits on
such cross-examination based on concerns about
harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive
or only marginally relevant. If the defendant
already has had a chance to impeach the witness’s
credibility and establish that she has a motive to
lie, then any constitutional concerns vanish and
we review the district court’s decision to limit
additional inquiries only for abuse of discretion.
Even if the court errs in barring cross, that error
is harmless depending upon factors such as the
importance of the witness’s testimony in the pros-
ecution’s case, whether the testimony was cumu-
lative, the presence or absence of corroborating or
contradictory evidence, and the overall strength of
the prosecution’s case.” Groce, 891 F.3d at 268-69
(internal citations, ellipsis, and quotation marks
omitted).
SynopSiS of united StateS and illinoiS Supreme court deciSionS
addreSSing dna analySiS, lab reportS, and expert teStimony
baSed on work of otherS
This commentary has focused on decisions about statutes
designed to allow admissibility of out-of-court statements
under certain conditions and the effect of Crawford on their
admissibility. But no discussion of the confrontation clause and
the jurisprudence that stems from Crawford’s holding would
be complete without a discussion of United States and Illinois
Supreme Court decisions that address the broader question of
whether statements unrelated to a specic statute are testimo-
nial or nontestimonial. Other parts of this guide have discussed
the rst three of the four cases listed below. But they are listed
again and one is added, together with parenthetical summaries,
to complete this commentary—a commentary focused in large
part on the evolution of Crawford’s jurisprudence.
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
(sworn certicates of forensic analysts reporting the results of
testing that were admitted into evidence to establish that the
substance seized from the defendant was cocaine constituted
testimonial statements for confrontation clause purposes; four
of the ve justices who comprised the majority reasoned that
the sworn certicates were prepared for use in a criminal trial,
and that they therefore were the equivalent of testimony against
the defendant).
308RULE 807
ARTICLE VIII. HEARSAY
For a relevant decision applying Melendez-Diaz (and
Bullcoming), see United States v. Barber, 937 F.3d 965 (7th Cir.
2019) (holding that, though an ATF report that a rearm dealer
was currently federally licensed (to establish that element in
the count for stealing rearms from a federally licensed rearm
dealer) was improperly admitted in violation of the confron-
tation clause, that error was harmless because the owner of
the dealership testied to its current licensing and produced a
current license).
Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705
(2011) (a lab report that certied the results of a blood-alcohol
test on a sample taken from the defendant when he was arrested
for driving while intoxicated was improperly admitted into
evidence, because the test results were testimonial as the lab
report was created for an evidentiary purpose in aid of a police
investigation, and the surrogate testimony of a scientist who
did not participate in the testing did not meet constitutional
requirements).
Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221 (2012)
(DNA expert’s testimony that DNA taken from a vaginal swab
of the rape victim matched the defendant’s DNA was properly
admitted into evidence, even though the expert had no rst-
hand knowledge of the sources of the DNA or of the underlying
testing, and where, unlike in Melendez-Diaz and Bullcoming,
no report was admitted into evidence. Four of the ve justices in
the plurality reasoned that the testimony was admissible under
Rule 703 as evidence reasonably relied upon by experts; and
admissible, in the alternative, even if the report of the lab that
did the testing had been admitted into evidence, because it was
dissimilar from statements such as afdavits, depositions, prior
testimony, and confessions, which the confrontation clause
was designed to reach, this alternative basis being very similar
to Justice Thomas’ reasoning (as the fth vote for the plurality)
that the lab test lacked the solemnity necessary to trigger con-
frontation clause application). See the Author’s Commentary to
Ill. R. Evid. 703 for a discussion of Williams.
People v. Barner, 2015 IL 116949. The facts in this Illinois
case, which concerns DNA evidence related to a sex offense,
are similar to those in Williams. In its opinion, the Illinois
Supreme Court provides a comprehensive summary of the
three U.S. Supreme Court decisions given above, as well as
its own decision in People v. Leach, 2012 IL 111534, which
is thoroughly discussed in the Author’s Commentary on IRE
803(8). In this, its most recent decision on Crawford, and
consistent with Williams, the supreme court held that there was
no violation of the confrontation clause where State witnesses
were allowed to testify concerning the DNA laboratory work
and conclusions of nontestifying scientists regarding the restric-
tion fragment length polymorphism (RFLP) analysis method
and the short tandem repeat (STR) method. Applying the test
provided in Leach in regard to the testimony about the RFLP
method, the court held that the analysis was not performed for
the primary purpose of accusing a targeted individual or for
the primary purpose of providing evidence in a criminal case.
As for the evidence about the STR testing, the court noted that
the record failed “to establish that it was done for the primary
purpose of targeting defendant or creating evidence for use
in a criminal prosecution” (Barner, at ¶ 69), but even if the
defendant’s right of confrontation had been violated, the court
held, any error in the admission of the evidence was harmless
beyond a reasonable doubt.
COMMENTARY CONTINUED
309ARTICLE IX. AUTHENTICATION ... RULE 901
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sucient to support
a nding that the item is what the proponent claims it
is.
(b) Examples. e following are examples only—
not a complete list—of evidence that satises the
requirement:
(1) Testimony of a Witness with Knowl-
edge. Testimony that an item is what it is claimed
to be.
(2) Nonexpert Opinion About Handwriting. A
nonexpert’s opinion that handwriting is genuine,
based on a familiarity with it that was not acquired
for the current litigation.
(3) Comparison by an Expert Witness or the
Trier of Fact. A comparison with an authenticated
specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the
Like. e appearance, contents, substance, internal
patterns, or other distinctive characteristics of the
item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion iden-
tifying a person’s voice—whether heard rsthand or
through mechanical or electronic transmission or
recording—based on hearing the voice at any time
under circumstances that connect it with the alleged
speaker.
(6) Evidence About a Telephone Conversa-
tion. For a telephone conversation, evidence that a
call was made to the number assigned at the time to:
(A) a particular person, if circumstances,
including self-identication, show that the person
answering was the one called; or
Rule 901. Requirement of Authentication or
Identication
(a) General Provision. e requirement of authen-
tication or identication as a condition precedent
to admissibility is satised by evidence sucient to
support a nding that the matter in question is what its
proponent claims.
(b) Illustrations. By way of illustration only, and
not by way of limitation, the following are examples
of authentication or identication conforming with the
requirements of this rule:
(1) Testimony of Witness With Knowl-
edge. Testimony that a matter is what it is claimed
to be.
(2) Nonexpert Opinion on Handwriting. Non-
expert opinion as to the genuineness of handwriting,
based upon familiarity not acquired for purposes of
the litigation.
(3) Comparison by Trier or Expert Witness. Com-
parison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive Characteristics and the
Like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics of an
item, including those that apply to the source of an
electronic communication, taken in conjunction
with the circumstances.
(5) Voice Identication. Identication of a
voice, whether heard rsthand or through mechani-
cal or electronic transmission or recording, by opin-
ion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone
conversations, by evidence that a call was made to
the number assigned at the time by the telephone
company to a particular person or business, if (A)
in the case of a person, circumstances, including
310RULE 901 ARTICLE IX. AUTHENTICATION ...
(B) a particular business, if the call was made
to a business and the call related to business rea-
sonably transacted over the telephone.
(7) Evidence About Public Records. Evidence
that:
(A) a document was recorded or led in a
public oce as authorized by law; or
(B) a purported public record or statement is
from the oce where items of this kind are kept.
(8) Evidence About Ancient Documents or
Data Compilations. For a document or data com-
pilation, evidence that it:
(A) is in a condition that creates no suspicion
about its authenticity;
(B) was in a place where, if authentic, it would
likely be; and
(C) is at least 20 years old when oered.
(9) Evidence About a Process or System. Evi-
dence describing a process or system and showing
that it produces an accurate result.
(10) Methods Provided by a Statute or
Rule. Any method of authentication or identica-
tion allowed by a federal statute or a rule prescribed
by the Supreme Court.
self-identication, show the person answering to be
the one called, or (B) in the case of a business, the
call was made to a place of business and the conver-
sation related to business reasonably transacted over
the telephone.
(7) Public Records or Reports. Evidence that
a writing authorized by law to be recorded or led
and in fact recorded or led in a public oce, or a
purported public record, report, statement, or data
compilation, in any form, is from the public oce
where items of this nature are kept.
(8) Ancient Documents or Data Compila-
tion. Evidence that a document or data compilation,
in any form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was in a
place where it, if authentic, would likely be, and (C)
has been in existence 20 years or more at the time it
is oered.
(9) Process or System. Evidence describing a
process or system used to produce a result and show-
ing that the process or system produces an accurate
result.
(10) Methods Provided by Statute or Rule. Any
method of authentication or identication provided
by statute or by other rules prescribed by the Supreme
Court.
COMMENTARY
Author’s Commentary on Ill. R. Evid. 901(a)
IRE 901(a) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. The rule requires that, to have an item of evidence
admitted, there must be evidence sufcient to prove that the
item is what the proponent claims it to be. Under IRE 104(b),
without being bound by the rules of evidence (except those
with respect to privilege) and as with all determinations
concerning admissibility of evidence, the trial court initially
determines whether there is a sufcient basis for the jury to
reasonably determine that the proffered evidence is authentic.
If the evidence is admitted, the jury then makes the ultimate
determination as to whether there is a factual basis for deter-
mining that the evidence is authentic and, if it so nds, what
weight to give to the evidence.
There is no codied rule that deals with “chain of custody.”
For an Illinois Supreme Court case addressing issues concern-
ing evidentiary issues related to laying a proper foundation
for admitting evidence, see People v. Woods, 214 Ill. 2d 455
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
311ARTICLE IX. AUTHENTICATION ... RULE 901
(2005) (holding that, on appeal, a “defendant’s challenge to the
State’s chain of custody is properly considered an attack on the
admissibility of the evidence, rather than a claim against the
sufciency of the evidence, and is subject to the ordinary rules
of waiver”).
application of the Silent witneSS theory
People v. Reynolds, 2021 IL App (1st) 181227, deserves seri-
ous consideration for it provides the bases for authenticating
audio recordings of two jail telephone calls without relying on
the typical foundations for admission of such recordings and
without relying on any subdivision of IRE 901(b), by relying
on proof of authentication through the “silent witness theory.”
In Reynolds, the State presented evidence that, while the
defendant was in pretrial custody for felony offenses, two sep-
arate telephone conversations, which provided incriminating
information against the defendant, were recorded by the jail’s
inmate phone system. The recorded conversations involved
the same man and the same woman. The State contended
that the recorded male’s voice was defendant’s. The defendant
contended that the State failed to lay a proper foundation to
authenticate the recordings.
In addition to pointing out the typical foundational require-
ments for admitting audio recordings (see Reynolds, at ¶ 50),
and noting that an audio recording is generally authenticated
“when a participant to the conversation or a person who
heard the conversation while it was taking place identies the
voices of the people in the conversation and testies that the
[recording] accurately portrays the conversation,” the appellate
court reasoned that “where there is no witness with personal
knowledge of what the recordings portray, a sufcient founda-
tion to admit the recording may be laid under what is known as
the silent witness theory,” where “a recording may be admitted
without the testimony of a witness with personal knowledge of
what the recording portrays as long as there is sufcient proof
of the reliability of the process that produced the recording.”
Id. at ¶ 49.
Reynolds offers a thorough analysis of the evidence that
sufciently demonstrated the accuracy and reliability of the
process that produced the recordings of the jail calls. It relied
on the testimony of the sheriff’s employee who testied con-
cerning the workings of the jail’s inmate phone system, includ-
ing its monitoring and recording; the fact that the male caller
provided the defendant’s name and personal identication
number; that there was no need for a voice recognition feature;
and, citing People v. Viramontes, 2017 IL App (1st) 142085,
¶ 71, and People v. Taylor, 2011 IL 110067, ¶ 39, holding that
“the fact that the audio recording[s] exist[] at all demonstrates
[that] the system was acting correctly” (Reynolds, at ¶ 55), thus
rejecting the defendant’s contentions that the State “offered no
evidence regarding the capability of the recording device, the
competency of the individual who operated it, or whether the
device was operating properly when the calls were made.” Id.
Author’s Commentary on Ill. R. Evid. 901(b) and its Subdivisions
IRE 901(b) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. Except for language added to IRE 901(b)(4), effective
September 17, 2019 (which is discussed below), the numbered
subdivisions that comprise IRE 901(b) are identical to their fed-
eral counterparts before the December 1, 2011 amendments.
They offer a series of illustrations—as examples only, and not
as a complete list—of evidence that satises the requirement of
authenticating or identifying an item of evidence.
ire 901(b)(1)
IRE 901(b)(1) provides the obvious illustration that testimony
of a witness with knowledge that an item of evidence is what it
is claimed to be provides sufcient evidence of authentication
or identication. For an example of the application of the rule,
see People v. Tetter, 2018 IL App (3d) 150243, ¶¶ 25-34, where
the appellate court afrmed the admission of a voicemail
recording which the complaining witness in a prosecution for
aggravated criminal sexual abuse identied as a message she
left on the defendant’s voicemail, and on which she stated that
she was 16 years of age, thus establishing the relevant element
of defendant’s knowledge of her age. That the recording was
captured from the defendant’s cell phone on a thumb drive
by the U.S. Secret Service through an unknown method or that
a challenge to the complaining witness’s credibility may have
affected the weight of the evidence, but not its admissibility.
COMMENTARY CONTINUED
312RULE 901 ARTICLE IX. AUTHENTICATION ...
The federal rule analysis is identical. See United States
v. Brewer, 915 F.3d 408 (7th Cir. 2019) ( “Rule 901 does not
expressly describe how videotape evidence may be authenti-
cated, but we have held that the government can authenticate
a recording ‘by offering testimony of an eyewitness that the
recording accurately reects’ the events as they occurred.
United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006); see
also United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014).”
Brewer, 915 F.3d at 417.
ire 901(b)(2) and (3)
For a statute comparable to IRE 901(b)(2) and (3), see sec-
tion 8-1501 of the Code of Civil Procedure, 735 ILCS 5/8-1501,
which reads:
“In all courts of this State it shall be lawful to prove
handwriting by comparison made by the witness or jury
with writings properly in the les of records of the case,
admitted in evidence or treated as genuine or admitted
to be genuine, by the party against whom the evidence
is offered, or proved to be genuine to the satisfaction of
the court.”
Sections 8-1502 and 8-1503 of the same Code require
notice of the use of handwriting standards to the opposing
party and an opportunity for the opposing party to examine
any proposed handwriting standards.
ire 901(b)(3) and (4)
IRE 901(b)(3) and IRE 901(b)(4) were subject to in-depth
analysis by the appellate court in People v. Pitts, 2016 IL App
(1st) 132205. In that case, at a motion-to-suppress hearing, the
second page of a complaint for search warrant was missing. The
complaint had been signed by the judge issuing the warrant
and it led to the issuance of a search warrant that resulted in
the recovery of rearms and ammunition, which in turn led
to criminal charges based on weapons violations. To compen-
sate for the missing page at the hearing, the State offered an
unsigned copy of the complaint. The trial court accepted the
copy and denied the motion to suppress. On appeal after the
defendant’s conviction, the issue before the appellate court
concerned the propriety of the trial court’s considering the
purported duplicate copy of the second page of the complaint
in denying the defendant’s motion to suppress the evidence.
In its analysis, the appellate court rst cited section 8-1206
of the Code of Civil Procedure (735 ILCS 5/8-1206), which
“provides that the authenticity of court records ‘may be proved
by copies examined and sworn to by credible witnesses.’”
Pitts, at ¶ 64 (emphasis added by the court). Acknowledging
that the State had provided no live testimony regarding the
authenticity of the copy of the complaint for the search war-
rant, the appellate court noted that “under the Illinois Rules of
Evidence, sworn testimony is not the only way to authenticate
a document.” Id. at ¶ 71. The court pointed out that, in addition
to witness testimony under IRE 901(b)(1) (which, the court
reasoned, provided the same authentication method as that
provided in section 8-1206), authentication may be established
by the trier of fact comparing the document to other authenti-
cated documents under IRE 901(b)(3), “or by the document’s
‘[a]ppearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circum-
stances’” under IRE 901(b)(4). Pitts, at ¶ 72.
The court concluded “that these alternative methods of
authentication in the rules of evidence act to supplement
the method of authentication provided in section 8-1206.”
Therefore, to avoid a conict between the rules of evidence
and a statutory rule of evidence, the court refused to read sec-
tion 8-1206 as providing the exclusive method for providing
authentication.
After then engaging in a thorough analysis of the rst page
of the complaint for search warrant and the warrant itself, and
comparing it to the contents of the purported second page of the
complaint, the appellate court determined that the requirement
of authentication was satised because of a “[c]omparison ***
with specimens which have been authenticated” under IRE
901(b)(3); or alternatively, under IRE 901(b)(4), “based on the
‘[a]ppearance, contents, *** or other distinctive characteristics’
of the second page ‘taken in conjunction with circumstances,’
such as the fact that the second page continues a sentence from
the rst page, clearly covers the same subject matter, and con-
tains the same distinctive legend as both the rst page and the
warrant itself.” Pitts, at ¶ 79. Accordingly, the appellate court
upheld the authentication of the substitute second page of the
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313ARTICLE IX. AUTHENTICATION ... RULE 901
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complaint for search warrant and afrmed the conviction of
the defendant.
ire 901(b)(4)
Effective September 17, 2019, the supreme court amended
IRE 901(b)(4). Immediately after the phrase “or other distinctive
characteristics” the court added “of an item, including those
that apply to the source of an electronic communication.”
Until that revision, no evidence rule had specically addressed
authentication of electronic communications such as text
messages, emails, and social media sites. Before the amend-
ment, Rule 901(b)(4), which provides circumstantial evidence
of authenticity based on “distinctive characteristics,” was
nevertheless the go-to rule for a trial court’s determination of
an electronic communication’s authenticity. But the supreme
court’s amendment now makes it clear that such communica-
tions are subject to the rule. The court recognizes the impact
of rapidly evolving technology on the admissibility of evidence
and the need for the rules to keep pace. The amendment makes
explicit what previously was implicit. (Note that in People
v. Brand, 2021 IL 125945, ¶ 38, which is discussed infra, in
afrming the admission of the defendant’s use of an alias name
in Facebook postings, the supreme court quoted this paragraph,
thus embracing the fact that IRE 901(b)(4) implicitly applied
even before the court’s September 17, 2019 amendment.)
It is especially important for those who proffer evidence
of documents or communications (whether electronic or
otherwise) to stress the distinctive characteristics that will
lead the trial judge to determine that the proffered evidence is
admissible as authentic and, if admitted, will lead the jury to
give the evidence the desired weight. With those goals in mind,
the following decisions are offered as examples of success and
failure in obtaining admissibility.
Regarding IRE 901(b)(4), see the pre-codication decision
in People v. Towns, 157 Ill. 2d 90, 104 (1993) (“In authenti-
cating a document by circumstantial evidence, factors such as
appearance, contents, and substance need to be considered.”).
Regarding the admissibility of “Caller ID” as a foundational
basis for proving the source of a phone call, see People v.
Caffey, 205 Ill. 2d 52 (2001) (“Reliability may be established
when the witness testies that when he or she received tele-
phone calls, the witness checked the caller ID and that the
same number always appeared for the same caller.”). For other
examples of this rule’s application to phone conversations, see
the discussion of IRE 901(b)(6) just below.
Regarding circumstantial evidence of authorship for the
admissibility of an e‑mail message, see People v. Diomedes,
2014 IL App (2d) 121080, ¶¶ 17-19 (citing IRE 901(b)(4) in
holding that authentication requirements for admissibility of
an e-mail message may be satised where the document’s
contents, in conjunction with other circumstances, reect dis-
tinctive characteristics; and there is no obligation to prove that
the IP address from which the e-mail was sent was connected
to the defendant).
Regarding the authentication requirements for admission of
sent and received text messages, see People v. Walker, 2016 IL
App (2d) 140566 (applying IRE 901(b)(4) to establish circum-
stantial evidence that defendant arranged or was accountable
for a fourth cocaine sale, where text messages involving a
phone number used by an undercover ofcer to receive and
make calls to defendant and buy cocaine from him three prior
times before using only text messages for the fourth drug pur-
chase). Also, see the Seventh Circuit decisions in United States
v. Lewisbey, 843 F.3d 653 (7th Cir. 2016) (applying FRE 901(b)
(4), which is identical to its Illinois counterpart, in holding that
the defendant’s text messages and Facebook posts satised the
rule’s requirements and were properly admitted); and United
States v. Barber, 937 F.3d 965 (7th Cir. 2019) (citing Lewisbey
and relying on direct and circumstantial evidence that estab-
lished Facebook account belonged to defendant).
In People v. Harper, 2017 IL App (4th) 150045, one of the
issues was the propriety of the admission of a series of text
messages to the defendant from an unidentied person. The
gist of the texts was that the unidentied text-sender had heard
that the defendant and “some of your guys” were responsible
for a killing that had occurred just hours earlier. In its anal-
ysis, the appellate court held that a “record from the phone
company, showing the time and recipient or maker of calls to
or from a number registered to defendant, is admissible as a
business record. The same is true with regard to text messages.
The fact calls and texts were made and received by defendant
314RULE 901 ARTICLE IX. AUTHENTICATION ...
was properly authenticated.” Harper, at ¶ 57. Despite the fact
that the State had established a proper foundation to introduce
evidence that calls and texts were made and received by the
defendant, the appellate court held that the content of the text
messages should not have been admitted, because the State
had not identied who sent the messages, and the content of
the messages was blatant hearsay. Id. at ¶ 62. Allowing the jury
to see this prejudicial and inadmissible evidence constituted
reversible error.
See also People v. Watkins, 2015 IL App (3d) 120882 (hold-
ing that drug-related text messages recovered from a cell phone
located near recovered cocaine in an apartment shared by oth-
ers, used to connect the phone and the drugs to the defendant,
were improperly admitted into evidence because “there were
no cell phone records to indicate that the cell phone belonged
to or had been used by defendant or anyone else at the resi-
dence; there was no eyewitness testimony to indicate that the
cell phone belonged to or had been used by defendant or that
the messages were being sent to defendant; and there were no
identifying marks on the cell phone itself or on the cell phone’s
display screen to indicate that the cell phone belonged to or
had been used by defendant (other than possibly the references
to ‘Charles’ [which was defendant’s rst name] in the text
messages)” and because the police ofcer who provided expert
testimony about the meaning of the text messages was unable
to authenticate the text messages because he “had no personal
knowledge of the text messages and had no idea who was the
owner or user of the cell phone”). Id. at ¶ 38.
In People v. Kent, 2017 IL App (2d) 140917, the defendant
was convicted of the rst-degree murder of the victim who was
shot and killed on his driveway. The victim had two children
by the woman who was at that time in a relationship with
the defendant. Two days before the shooting, the defendant,
accompanied by the woman, had gone to the location where
the victim resided. There, the defendant was involved in a
violent altercation with the victim. The day after the shooting,
a detective took a screenshot of a Facebook post on a prole
under the name “Lorenzo Luckii Santos.” The screenshot was
deleted later on the day it was discovered. “Lorenzo” is the
defendant’s rst name; “Luckii” is the defendant’s nickname;
“Santos” was represented to be the last name of the defen-
dant’s mother, but the State presented no evidence of that
latter fact. The Facebook post contained “a photograph of
someone allegedly resembling defendant and an undated post
that states, ‘its my way or the highway.....leave em dead n his
driveway.’” Kent, at ¶ 81. During a pretrial hearing, there was a
representation that the Facebook post was associated with an IP
address belonging to the woman referred to above, but the State
presented no Facebook records at trial. The Facebook post was
admitted over the defendant’s objections. The signicant issue
on appeal was the propriety of the admission of the screenshot
of the Facebook post.
Noting that the parties had not cited, and that its research
had not discovered, any Illinois case addressing the admissi-
bility of a Facebook post allegedly attributable to a criminal
defendant, the appellate court relied heavily (see Kent, at
¶¶ 88-100) on a Second Circuit Court of Appeals case, United
States v. Vayner, 769 F.3d 125 (2d Cir. 2014)—a decision which
the Seventh Circuit in United States v. Barber, 837 F.3d 965
(7th Cir. 2019), later distinguished, stating: “the government’s
case was so weak that at rst it did not even try to admit the
website at issue as the defendant’s. When it did try, the govern-
ment could point to nothing in the record suggesting that the
defendant had ties to the website.” Barber, 837 F.3rd at 970.
Stressing the ease with which a ctitious Facebook posting can
be achieved and that the State failed to present any evidence
that it was not public knowledge that the victim was killed
on his own driveway, the appellate court in Kent concluded
that “to argue that the Facebook post was tantamount to an
admission that defendant killed the victim in his driveway, Rule
901 required ‘some basis’ on which a reasonable juror could
conclude that the post was not just any Internet post, but was
in fact created by defendant or at his direction.” Kent, at ¶ 119.
The court reversed the defendant’s conviction, holding that the
admission of the Facebook posting was error and that the error
was not harmless.
Postscript on Kent: The retrial of Kent, which resulted in
another conviction for rst-degree murder, was again reversed
and remanded by the appellate court in People v. Kent, 2020 IL
App (2d) 180887. In Kent II, the State’s claim that a key witness
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315ARTICLE IX. AUTHENTICATION ... RULE 901
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in the earlier trial was unavailable for trial resulted in the trial
court’s admission of the witness’s earlier testimony under IRE
804(b)(1). The appellate court reversed the conviction and
remanded the case because the State failed to support its claim
that the witness was unavailable by afdavit or sworn testimony.
People v. Curry, 2020 IL App (2d) 180148, is another
Facebook-related decision that distinguishes Kent. In so doing
the appellate court noted that in Kent “the only evidence of
authentication [of the Facebook post] was the defendant’s
nickname and a photograph allegedly resembling Kent.” Curry,
at ¶ 54 . In contrast, here the appellate court, noting that
Facebook messages are akin to e-mails or text messages, held
that Facebook postings sent by the defendant to the victim of
his sexual offense were properly admitted under IRE 902(11)
as self-authenticating business records, because the State
had submitted the written certication of a qualied person
from Facebook and the certication provided that the records
were made and kept by Facebook in the course of its regularly
conducted activity and as part of its regular business practice.
The appellate court concluded “that was sufcient to admit the
information regarding defendant’s name, address, telephone
number, and e-mail address, as indicated on the Facebook
account, as self-authenticating business records.” Curry, at ¶52.
To satisfy additional authentication requirements, the appellate
court cited IRE 901(b)(4), which allows authentication through
circumstantial evidence, reasoning that the Facebook messages
contained information that only defendant would have known,
including the defendant’s nickname for the victim and his
personal knowledge of the offense.
In People v. Brand, 2021 IL 125945, a prosecution for
home invasion, domestic battery, and possession of the female
victim’s stolen car, the supreme court upheld the admission of
Facebook postings against the defendant Brand who used the
nickname of Masetti Meech,
During its analysis, the supreme court quoted People v. Kent,
2020 IL App (2d) 180887, pointing out that “Kent held that
the following factors were relevant for determining whether a
social media post was properly authenticated:”
“(1) the purported sender admits authorship, (2) the
purported sender is seen composing the communica-
tion, (3) business records of an Internet service provider
or cell phone company show that the communication
originated from the purported sender’s personal com-
puter or cell phone under circumstances in which it is
reasonable to believe that only the purported sender
would have had access to the computer or cell phone,
(4) the communication contains information that only
the purported sender could be expected to know, (5)
the purported sender responds to an exchange in such a
way as to indicate circumstantially that he was in fact the
author of the communication, or (6) other circumstances
peculiar to the particular case may sufce to establish
a prima facie showing of authenticity.” Brand, at ¶ 44,
citing Kent, 2017 IL App (2d) 140917, at ¶ 118.
After citing these Kent factors, the supreme court claried
that:
“[t]he appellate court in Kent noted that these exam-
ples ‘are intended only as a guide’ and that “‘[e]vidence
may be authenticated in many ways, and as with any
piece of evidence whose authenticity is in question, the
‘type and quantum’ of evidence necessary to authenti-
cate a web page will always depend on context.’” Citing
Kent, 2017 IL App (2d) 140917, at ¶ 119.
Having made those observations, the supreme court in
Brand relied on the victim’s familiarity with the defendant’s
alias name because he had used it in prior messages to her and
because in one posting he accurately informed the victim of
the location of her stolen car, and in the other posting he made
reference to addresses where her relatives lived and where
she had previously worked. In explaining the relevance of IRE
901(b)(4) before and after its amendment in 2019, the supreme
court cited People v. Diomedes, 2014 IL App (2d) 121080, “in
holding that authentication requirements for the admissibility
of an e-mail message may be satised when the contents of
the document, in conjunction with other circumstances, reect
distinctive characteristics and that there is no obligation to
prove that the IP address from which the e-mail was sent was
connected to the defendant.” Brand, at ¶¶ 40-41. The court
provided this explanation:
316RULE 901 ARTICLE IX. AUTHENTICATION ...
COMMENTARY CONTINUED
“Although the 2019 amendment to example (4) of
Rule 901(b) was not available at the time of defendant’s
2017 bench trial, the amendment merely claried what
was already implicit—that electronic communications
are subject to the rule. Before the adoption of Rule 901 in
2011, Illinois case law had long recognized these same
principles of authentication by use of circumstantial
evidence, including factors such as appearance, con-
tents, and substance. [Citation]. As we have explained,
reliability may be established when a witness testies
as to the distinctive characteristics of the electronic
communication as a foundational basis for proving the
source of the electronic communication.” Brand, at ¶ 40.
In contrast to the underlying facts in Kent, where “the State
offered neither direct nor circumstantial proof of authentica-
tion” (Brand, at ¶ 46), the supreme court held that the State
presented sufcient evidence authenticating the Facebook
messages, thus justifying the trial court’s reasonable conclusion
that the messages were created by the defendant. In addition
to distinguishing Kent, Brand embraced the decision in Curry.
Note that Marsh v. Sandstone North, LLC, 2020 IL App (4th)
190314, demonstrates that, where a party fails to object in the
trial court to the admission of a Facebook post on the grounds
of authentication or hearsay, that party forfeits the right to raise
the issue of admissibility on appeal. Marsh, at ¶ 17.
ire 901(b)(5)
Regarding IRE 901(b)(5), see the Seventh Circuit Court of
Appeals decision addressing the federal rule (equally appli-
cable to the Illinois rule), in United States v. Mendiola, 707
F.3d 735 (7th Cir. 2013) (approving the application of the rule
in admitting the testimony of a Spanish language interpreter
in identifying the voice of the defendant on taped phone
conversations through a comparison with a voice exemplar
of the defendant; explaining the non-applicability of Rules
702 (related to expert opinion evidence) and 1002 (related
to the best evidence rule); describing the “minimal familiarity
requirement” of Rule 901(b)(5); and explaining how the per-
sonal knowledge requirements of Rule 602 and the lay opinion
evidence requirements of Rule 701 were satised).
ire 901(b)(6)
IRE 901(b)(6) provides illustrations for authenticating the
admission of telephone conversations. The rule describes
requirements where: (A) a call is made to a listed number and
(B) where a call is made to a place of business. But the rule
also applies—together with the requirements for “distinctive
characteristics” provided by IRE 901(b)(4)—where the witness
is the recipient of the call.
People v. Caffey, 205 Ill. 2d 52 (2001) is illustrative. There,
the witness received numerous calls from a woman with
whom she had never spoken. The woman identied herself
on each call and the witness noted that her caller ID device
always showed the name of the same woman. Holding that
the evidence concerning the calls was improperly excluded by
the trial court, the supreme court held that “[t]estimony as to a
telephone conversation between a witness and another person
is inadmissible in the absence of a claim by the witness that he
or she knows the other person or can identify the person’s voice
or other corroborative circumstances from which the caller can
be identied as the person who talked to the witness.” In this
case, the caller ID information was deemed to be sufcient
corroboration to permit admissibility.
Another supreme court decision that illustrates the appli-
cation of IRE 901(b)(4)’s corroborative effects on telephone
calls is People v. Edwards, 144 Ill. 2d 108, 166 (1991). There,
a number of ransom calls, two of which were recorded, were
made by an unknown male. To gain the admission at trial of
the two recorded calls, the State presented evidence that an
acquaintance of the defendant saw him in the telephone booth
to which one of the calls was traced at the approximate time
of one of the recorded calls. Also, an FBI agent testied that he
saw a man at the telephone booth where one of the calls had
been traced, near a car where a woman was seated, within
30 seconds of the tracing of one of the calls. The car was later
seen at defendant’s home, with defendant and the woman
exiting the car. The supreme court held that this circumstantial
evidence was sufcient to justify the use of the tapes at trial.
Citing both Caffey and Edwards, in People v. Camacho, 2018
IL App (2d) 160350, the appellate court upheld the admission at
trial of the recording of a 911 call, in which the caller asked for
317ARTICLE IX. AUTHENTICATION ... RULE 901
COMMENTARY CONTINUED
police assistance because her husband had grabbed her by the
neck. The caller gave her name and the name of the defendant,
as well as his date of birth and what he was wearing. When
police arrived at the apartment a few minutes later, defendant
and his wife were the only two adults present. The information
provided on the 911 call perfectly matched the ofcers’ obser-
vations. A photo taken shortly after the ofcers’ arrival showed
redness around the wife’s neck. Although defendant’s wife did
not testify at trial, the appellate court reasoned that “the content
of the call was corroborated by other circumstances identifying
[defendant’s wife] as the caller,” and it held that the trial court
did not abuse its discretion in admitting the recording into
evidence. Camacho, at ¶ 27.
ire 901(b)(7)
IRE 901(b)(7) provides the authentication requirements for
the admission of public records as an exception to the hearsay
rule under IRE 803(8) . Such records may be admitted through
judicial notice. See, e.g., Menominee Indian Tribe v. Thompson,
161 F.3d 449, 456 (7th Cir. 1998) (“Judicial notice of historical
documents, documents contained in the public record, and
reports of administrative bodies is proper.”). The rule should
be distinguished from IRE 902(4), which allows admission
into evidence of public records by self-authentication through
certication.
ire 901(b)(8)
IRE 901(b)(8) provides the authentication requirements
for IRE 803(16), which provides the hearsay exception for
statements in ancient documents. Note that the September 28,
2018 amendment of IRE 803(16), which provides a hearsay
exception for an authentic document prepared before January
1, 1998, effectively requires the document to be in existence
20 years or more, so no amendment to IRE 901(b)(8)(C), which
refers to the 20-year requirement, was necessary. In the future,
however, to satisfy the rule’s requirement for authenticating an
ancient document, one of the required proofs will be, not that
the document was prepared 20 years or more before the date
offered for admission, but that it predates January 1, 1998.
Note that the 20-year provision in IRE 901(b)(8)(C) (and in
pre-amended IRE 803(16)) for evidence of an ancient docu-
ment or data compilation represented a substantive change in
Illinois, because under the common law a 30-year time period
had been required. See section (9) under the “Modernization”
discussion in the Committee’s general commentary on page 3
of this guide. As noted, though the 20-year provision remains
in IRE 901(b)(8)(C), the September 28, 2018 amendment to IRE
803(16) has altered the time requirement for ancient documents
to those prepared before January 1, 1998.
The rule furnishes a method (but not necessarily the only
method) for authenticating statements in ancient documents
under IRE 803(16). It is premised on the belief that the authenti-
cation requirements in subdivisions (A) and (B) of the rule min-
imize the danger of mistake and that the age of the document
or data compilation in subdivision (C) offer assurance that the
writing antedates the present controversy.
ire 901(b)(9)
For a case relevant to IRE 901(b)(9), see People v. Holowko,
109 Ill. 2d 187 (1985) (pointing out that “the printout of results
of computerized telephone tracing equipment represents a
self-generated record of its operations, much like a seismo-
graph can produce a record of geophysical occurrences, a
ight recorder can produce a record of physical conditions
onboard an aircraft, and an electron microscope can produce
a micrograph, which is a photograph of things too small to be
viewed by the human eye.” Holowko, 109 Ill. 2d at 193 (inter-
nal quotation marks omitted), and holding that the admission
into evidence of such results “requires only foundation proof of
the method of the recording of the information and the proper
functioning of the device by which it was effected”) Id.
Also, see People v. Caffey, 205 Ill. 2d 52 (2001) (holding
that “information displayed on a caller ID device is not hearsay
because there is no out-of-court asserter” and holding further
that “the only requirement necessary for the admission of caller
ID evidence is that the caller ID device be proven reliable,”
which was satised in this case because the witness’s caller ID
displayed the caller’s name for each of the numerous calls from
the same woman).
See also Grand Liquor Co. v. Department of Revenue, 67
Ill. 2d 195 (1977) (nding that Department of Revenue failed
to lay sufcient foundation for admission of records, but
adopting decision of the Mississippi Supreme Court in holding
318RULE 901 ARTICLE IX. AUTHENTICATION ...
“that print-out sheets of business records stored on electronic
computing equipment are admissible in evidence if relevant
and material, without the necessity of identifying, locating and
producing as witnesses the individuals who made the entries
in the regular course of business if it is shown (1) that the elec-
tronic computing equipment is recognized as standard equip-
ment, (2) the entries are made in the regular course of business
at or reasonably near the time of the happening of the event
recorded, and (3) the foundation testimony satises the court
that the sources of information, method and time of prepara-
tion were such as to indicate its trustworthiness and justify its
admission”); People v. Hanna, 207 Ill. 2d 486 (2003) (regarding
breath analysis instruments for the testing of alcohol level);
People v. Orth, 124 Ill. 2d 326 (1998) (providing foundation for
admission of breath test in DUI case); People v. Eagletail, 2014
IL App (1st) 130252 (holding that a computer report of a breath
test in a DUI case was properly admitted, and that the original
printout sheet from the machine was unnecessary); People v.
Smith, 2015 IL App (1st) 123306 (reversing defendant’s con-
viction for driving with an alcohol concentration of 0.08 or
more because of the absence of evidence of the certication
of accuracy of the Breathalyzer machine within 62 days of the
test); People v. Hagan, 145 Ill. 2d 287 (1991) (citing Grand
Liquor Co. v. Department of Revenue, 67 Ill. 2d 198 (1977),
in holding a faxed letter was properly admitted, for it satised
the foundation requirements for computer printouts); Aliano v.
Sears, Roebuck & Co., 2015 IL App (1st) 143367 (explaining
the difference between computer-generated records (using
the denition and proof of the method for the recording of
the information supplied by the quotes in the parenthetical of
Holowko above) and computer-stored records, which consist
of information placed into a computer by an out-of-court
declarant, and holding that the business records exception to
the hearsay rule was not satised for the purpose of proving
attorney fees, because the original documents concerning
those fees had not been presented in court or made available
to the opposing party).
For a decision that provides authentication requirements
for computer-generated business records, see the discussion
about People v. Dixon, 2015 IL App (1st) 130132 under the
heading Computer-Generated Business Records in the Author’s
Commentary on Ill. R. Evid. 902 and Its Subdivisions.
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319ARTICLE IX. AUTHENTICATION ... RULE 902
Rule 902. Evidence at Is Self-Authenticating
e following items of evidence are self-authenticat-
ing; they require no extrinsic evidence of authenticity in
order to be admitted:
(1) Domestic Public Documents at Are Sealed
and Signed. A document that bears:
(A) a seal purporting to be that of the United
States; any state, district, commonwealth, territory,
or insular possession of the United States; the for-
mer Panama Canal Zone; the Trust Territory of the
Pacic Islands; a political subdivision of any of these
entities; or a department, agency, or ocer of any
entity named above; and
(B) a signature purporting to be an execution or
attestation.
(2) Domestic Public Documents at Are Not
Sealed but Are Signed and Certied. A document
that bears no seal if:
(A) it bears the signature of an ocer or employee
of an entity named in Rule 902(1)(A); and
(B) another public ocer who has a seal and
ocial duties within that same entity certies under
seal—or its equivalent—that the signer has the o-
cial capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that
purports to be signed or attested by a person who is
authorized by a foreign country’s law to do so. e
document must be accompanied by a nal certication
that certies the genuineness of the signature and o-
cial position of the signer or attester—or of any foreign
ocial whose certicate of genuineness relates to the
signature or attestation or is in a chain of certicates of
genuineness relating to the signature or attestation. e
certication may be made by a secretary of a United
States embassy or legation; by a consul general, vice
consul, or consular agent of the United States; or by
a diplomatic or consular ocial of the foreign country
assigned or accredited to the United States. If all parties
have been given a reasonable opportunity to investigate
Rule 902. Self-authentication
Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect
to the following:
(1) Domestic Public Documents Under Seal. A
document bearing a seal purporting to be that of the
United States, or of any State, district, Commonwealth,
territory, or insular possession thereof, or the Panama
Canal Zone, or the Trust Territory of the Pacic Islands,
or of a political subdivision, department, ocer, or
agency thereof, and a signature purporting to be an
attestation or execution.
(2) Domestic Public Documents Not Under
Seal. A document purporting to bear the signature
in the ocial capacity of an ocer or employee of any
entity included in paragraph (1) hereof, having no seal,
if a public ocer having a seal and having ocial duties
in the district or political subdivision of the ocer or
employee certies under seal that the signer has the
ocial capacity and that the signature is genuine.
(3) Foreign Public Documents. A document pur-
porting to be executed or attested in an ocial capacity
by a person authorized by the laws of a foreign country
to make the execution or attestation, and accompanied
by a nal certication as to the genuineness of the
signature and ocial position (A) of the executing or
attesting person, or (B) of any foreign ocial whose
certicate of genuineness of signature and ocial
position relates to the execution or attestation or is in
a chain of certicates of genuineness of signature and
ocial position relating to the execution or attestation.
A nal certication may be made by a secretary of an
embassy or legation, consul general, consul, vice consul,
or consular agent of the United States, or a diplomatic
or consular ocial of the foreign country assigned or
accredited to the United States. If reasonable oppor-
tunity has been given to all parties to investigate the
authenticity and accuracy of ocial documents, the
court may, for good cause shown, order that they be
treated as presumptively authentic without nal certi-
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
320RULE 902 ARTICLE IX. AUTHENTICATION ...
the document’s authenticity and accuracy, the court
may, for good cause, either:
(A) order that it be treated as presumptively
authentic without nal certication; or
(B) allow it to be evidenced by an attested sum-
mary with or without nal certication.
(4) Certied Copies of Public Records. A copy of
an ocial record—or a copy of a document that was
recorded or led in a public oce as authorized by
law—if the copy is certied as correct by:
(A) the custodian or another person authorized
to make the certication; or
(B) a certicate that complies with Rule 902(1),
(2), or (3), a federal statute, or a rule prescribed by
the Supreme Court.
(5) Ocial Publications. A book, pamphlet, or
other publication purporting to be issued by a public
authority.
(6) Newspapers and Periodicals. Printed material
purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscrip-
tion, sign, tag, or label purporting to have been axed
in the course of business and indicating origin, owner-
ship, or control.
(8) Acknowledged Documents. A document
accompanied by a certicate of acknowledgment that is
lawfully executed by a notary public or another ocer
who is authorized to take acknowledgments.
(9) Commercial Paper and Related Docu-
ments. Commercial paper, a signature on it, and
related documents, to the extent allowed by general
commercial law.
(10) Presumptions Under a Federal Statute. A sig-
nature, document, or anything else that a federal statute
declares to be presumptively or prima facie genuine or
authentic.
(11) Certied Domestic Records of a Regularly
Conducted Activity. e original or a copy of a
domestic record that meets the requirements of Rule
803(6)(A)–(C), as shown by a certication of the cus-
cation or permit them to be evidenced by an attested
summary with or without nal certication.
(4) Certied Copies of Public Records. A copy
of an ocial record or report or entry therein, or of a
document authorized by law to be recorded or led and
actually recorded or led in a public oce, including
data compilations in any form, certied as correct by
the custodian or other person authorized to make the
certication, by certicate complying with paragraph
(1), (2), or (3) of this rule or complying with any statute
or rule prescribed by the Supreme Court.
(5) Ocial Publications. Books, pamphlets, or
other publications purporting to be issued by public
authority.
(6) Newspapers and Periodicals. Printed materials
purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions,
signs, tags, or labels purporting to have been axed
in the course of business and indicating ownership,
control, content, ingredients, or origin.
(8) Acknowledged Documents. Documents
accompanied by a certicate of acknowledgment
executed in the manner provided by law by a notary
public or other ocer authorized by law to take
acknowledgments.
(9) Commercial Paper and Related Docu-
ments. Commercial paper, signatures thereon, and
documents relating thereto to the extent provided by
general commercial law.
(10) Presumptions Under Statutes. Any signature,
document, or other matter declared by statutes to be
presumptively or prima facie genuine or authentic.
(11) Certied Records of Regularly Conducted
Activity. e original or a duplicate of a record of regu-
larly conducted activity that would be admissible under
Rule 803(6) if accompanied by a written certication of
its custodian or other qualied person that the record
(A) was made at or near the time of the occur-
rence of the matters set forth by, or from information
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
321ARTICLE IX. AUTHENTICATION ... RULE 902
transmitted by, a person with knowledge of these
matters;
(B) was kept in the course of the regularly con-
ducted activity; and
(C) was made by the regularly conducted activity
as a regular practice.
e word “certication” as used in this subsection
means with respect to a domestic record, a written
declaration under oath subject to the penalty of perjury
and, with respect to a record maintained or located in a
foreign country, a written declaration signed in a coun-
try which, if falsely made, would subject the maker to
criminal penalty under the laws of the country. A party
intending to oer a record into evidence under this
paragraph must provide written notice of that intention
to all adverse parties, and must make the record and cer-
tication available for inspection suciently in advance
of their oer into evidence to provide an adverse party
with a fair opportunity to challenge them.
(12) Certied Records Generated by an Electronic
Process or System. A record generated by an electronic
process or system that produces an accurate result,
as shown by a certication of a qualied person that
complies with the procedural requirements for Rule
902(11) certication. e proponent must also meet
the notice requirements of Rule 902(11).
(13) Certied Data Copied from an Electronic
Device, Storage Medium, or File. Data copied from
an electronic device, storage medium, or le, if authen-
ticated by a process of digital identication, as shown
by a certication of a qualied person that complies
with the procedural requirements for Rule 902(11)
certication. e proponent also must meet the notice
requirements of Rule 902(11).
todian or another qualied person that complies with
a federal statute or a rule prescribed by the Supreme
Court. Before the trial or hearing, the proponent must
give an adverse party reasonable written notice of the
intent to oer the record—and must make the record
and certication available for inspection—so that the
party has a fair opportunity to challenge them.
(12) Certied Foreign Records of a Regularly
Conducted Activity. In a civil case, the original or a
copy of a foreign record that meets the requirements
of Rule 902(11), modied as follows: the certication,
rather than complying with a federal statute or Supreme
Court rule, must be signed in a manner that, if falsely
made, would subject the maker to a criminal penalty
in the country where the certication is signed. e
proponent must also meet the notice requirements of
Rule 902(11).
(13) Certied Records Generated by an Elec-
tronic Process or System. A record generated by an
electronic process or system that produces an accurate
result, as shown by a certication of a qualied person
that complies with the certication requirements of
Rule 902(11) or (12). e proponent must also meet
the notice requirements of Rule 902(11).
(14) Certied Data Copied from an Electronic
Device, Storage Medium, or File. Data copied from
an electronic device, storage medium, or le, if authen-
ticated by a process of digital identication, as shown by
a certication of a qualied person that complies with
the certication requirements of Rule 902(11) or (12).
e proponent also must meet the notice requirements
of Rule 902(11).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
322RULE 902 ARTICLE IX. AUTHENTICATION ...
Author’s Commentary on Ill. R. Evid. 902 and Its Subdivisions
As the lead sentence of Rule 902 explains, the subject of
each of the rule’s subdivisions is self-authenticating, for each
requires no extrinsic (“extra”) evidence of authenticity to be
admitted into evidence. That many of the subdivisions require
some form of certication to qualify for self-authentication is
merely a necessary element for the self-authenticating designa-
tion and for admissibility—barring relevance, hearsay, or some
other basis for exclusion.
IRE 902 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The following subdivisions of IRE 902, all substantially
identical to their federal counterparts, describe items of evi-
dence that are self-authenticating.
For an appellate court case applying IRE 902(1), see People
ex rel. Madigan v. Kole, 2012 IL App (2d) 110245 (nding that
an IRS Report and a Waiver were self-authenticating under the
codied rule).
For an Illinois statute relevant to IRE 902(2) and (3), see the
Uniform Recognition of Acknowledgments Act, 765 ILCS 30/1
et seq.
Except for the federal rule’s reference to “an Act of Congress”
(for the word “statute” in the Illinois rule) in its last clause, IRE
902(4) is identical to FRE 902(4) before the latter’s amendment
solely for stylistic purposes effective December 1, 2011. The
rule provides for self-authentication through the certication
of public records and reports which are admissible as an
exception to the hearsay rule under IRE 803(8), and should
be contrasted to IRE 901(b)(7), which is not self-authenticating
because it lacks a certication requirement.
Statutes relevant to IRE 902(5) include 735 ILCS 5/8-1202
(related to court records) and 735 ILCS 5/8-1203 (related to
municipal records).
For a case relevant to IRE 902(6), see Alimissis v. Nanos, 171
Ill. App. 3d 1005 (1988) (regarding stock quotations).
Note that “content” and “ingredients” were added to IRE
902(7) to codify Illinois common law. See People v. Shevock,
335 Ill. App. 3d 1031 (2003) (proper to admit, as exception to
hearsay rule, boxes of Sudafed with labels that showed active
ingredient was pseudoephedrine, a necessary ingredient of
methamphetamine); In re T.D., 115 Ill. App. 3d 872 (1983)
(approving admission into evidence of statutorily required
label, whose information was deemed reliable based on the
way the glue tube was packaged and purchased).
For statutory counterparts of IRE 902(8), see sections 6 and
7 of the Uniform Recognition of Acknowledgments Act, 765
ILCS 30/1 et seq.
IRE 902(10) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011, except for changes to distinguish it from the federal
system. Examples of the statutes referred to by the rule include
65 ILCS 5/1-2-6 (authorized published municipal ordinances
are prima facie evidence of their contents); 810 ILCS 5/8-114
(presumption that signatures on securities certicates are “gen-
uine or authorized”).
IRE 902(11) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except (1) the word “domestic” is deleted in the title
and in the rst part of the rst sentence; (2) “declaration” is
replaced by the word “certication” to correspond to the term
used in IRE 803(6); (3) as adjusted to distinguish from federal
proceedings; and (4) in the rst sentence of the last paragraph,
“certication” is dened. Also, by incorporating FRE 902(12)’s
provisions related to the certication of foreign business
records into IRE 902(11), there was no need to have separate
Illinois rules for domestic and foreign records.
Although, under IRE 902(11), the keeper of the records or
other qualied person may still provide testimony to provide the
foundational requirements for admission of business records,
by permitting the foundational requirement to be furnished
by certication, as this rule does, the rule abrogates Illinois’
former requirement to call a witness to establish the foundation
for admission, thus representing a substantive change in Illinois
law. See also the Committee’s general commentary about
self-authentication in section (12) under the “Modernization”
discussion on page 4 of this guide.
For a relevant case on a declaration for certication of
records in a foreign country, see In re Ersch’s Estate, 29 Ill. 2d
572 (1963). For relevant statutes on “Records and Patents,”
COMMENTARY
323ARTICLE IX. AUTHENTICATION ... RULE 902
which include court, municipal, and corporate records, see
735 ILCS 5/8-1201, et seq.
For an appellate court decision unrelated to the certication
allowed by IRE 902(11), but that nevertheless has signicant
effect on computer‑stored business records, see Aliano v. Sears,
Roebuck & Co., 2015 IL App (1st) 143367. In that case, brought
under the Consumer Fraud and Deceptive Business Practices
Act (815 ILCS 505/1 et seq.), the plaintiff was awarded a judg-
ment of $3.10 based on the defendant’s improper collection
of a sales tax. The plaintiff also was awarded attorney fees in
the amount of $157,813.53. In explaining his calculation of
those fees, the plaintiff’s attorney, the rm’s sole shareholder,
testied that an attorney or paralegal who worked on the case
wrote time sheets that were placed on a shelf in his ofce.
“Every month or so,” his secretary inputted these handwritten
time sheets into a computer program called Time Slips, after
which he compared the time sheets with the itemized entries
created by the computer program for accuracy, and then he
discarded the handwritten time sheets. Because there was no
other evidence of a record upon which a fee award could be
based, the propriety of the award in this case was dependent
on the admissibility of the billing statement derived from the
computer. Because the records had been admitted under
the business record exception to the hearsay rule, the issue
addressed by the appellate court was whether they were prop-
erly admitted under that exception.
Explaining the difference between computer-generated
and computer-stored data, the court held that, when “com-
puter-stored records sought to be admitted are the product
of human input taken from information contained in original
documents, the original documents must be presented in court
or made available to the opposing party, and the party seeking
admission of a record of that computer-stored data must be
able to provide testimony of a competent witness who has seen
the original documents and can testify to the facts contained
therein.” Aliano, at ¶ 31. Because those records were not and
could not be produced, the appellate court reversed the attor-
ney fee award and remanded the case to the circuit court to
afford the plaintiff “the opportunity to attempt to establish the
reasonable fees to which he is entitled by means other than the
billing statement.” Id. at ¶ 34.
As a follow-up to this decision, on remand plaintiff sought
attorney fees in the amount of $335,971, and the circuit
court awarded him attorney fees in the amount of $267,470.
On appeal from that award in Aliano v. Transform SR LLC, as
Successor in Interest to Sears, Roebuck & Co., 2020 IL App (1st)
172325, the appellate court applied the law-of-the-case doc-
trine in holding that its earlier opinion that the computerized
billing statement offered in evidence by the plaintiff in support
of his original fee petition was inadmissible and therefore the
circuit court abused its discretion in admitting the document
into evidence. The appellate court made the same determina-
tion of inadmissibility concerning the plaintiff’s revised petition
for attorney fees for a later time period. The court also rejected
plaintiff’s justication for attorney fees through testimony based
on refreshed recollection, which the court determined to be
unbelievable and thus against the manifest weight of evidence.
Finally, the appellate court acknowledged that the plaintiff was
entitled to some attorney fees for obtaining a $3.10 compensa-
tory damage judgment for a single violation of the Consumer
Fraud Act, but it remanded the matter to the circuit court for a
hearing to determine whether its $106,322 award of attorney
fees for post-January 1, 2014 was reasonably based on the
defendant’s militant defense tactics.
ire 902(12) and 902(13)
To keep pace with current computer technology, two
substantially identical federal and Illinois evidence rules have
been added. The rules are designed to provide a method for
establishing foundational requirements for self-authentication
by the certication of computer-generated and computer-stored
records and data.
FRE 902(13) and FRE 902(14) became effective on December
1, 2017. IRE 902(12) and IRE 902(13) became effective on
September 28, 2018. FRE 902(13) is substantially identical to
IRE 902(12), and FRE 902(14) is substantially identical to IRE
902(13). The rules’ number designations differ only because
there is a separate federal rule for the certication of foreign
business records (FRE 902(12)). Because Illinois merged the
rules related to domestic and foreign business records into
COMMENTARY CONTINUED
324RULE 902 ARTICLE IX. AUTHENTICATION ...
a single rule—IRE 902(11)—there was no need for another
rule such as FRE 902(12), which separately addresses the
certication of foreign business records. Despite their separate
designations, it must be stressed that these Illinois and federal
rules are substantially identical.
The added rules create procedures, like that in Rule 902(11),
by which parties may authenticate evidence “by a certication
of a qualied person” without the testimony of a witness.
IRE 902(12) and FRE 902(13) do this for computer-generated
records (as provided in Rule 901(b)(9)). IRE 902(13) and FRE
902(14) do it for computer-stored records. The rules were
proposed based on the recognition that, as is the case with
business records generally (and as exemplied in allowing the
certication of domestic business records under FRE 902(11)
and of foreign business records under FRE 902(12) and of both
domestic and foreign business records under IRE 902(11)),
evidence required for authentication is often stipulated to
before a witness is called or, where testimony is presented, it
frequently is admitted without challenge. As with FRE 902(11)
and (12) and IRE 902(11), the rules are designed to avoid the
expense and inconvenience of presenting what is frequently
an unnecessary witness. But note that the adoption of these
rules does not alter the foundational requirements for evidence
admission. They allow merely the admission of a certication
in lieu of a live witness.
The process the rules allow—a certication that must con-
tain information that would be sufcient to establish authen-
ticity were that information provided by a foundation witness
at trial—is designed merely to establish that the proffered item
has satised the requirements for authenticity. An opponent is
nonetheless free to object to the admissibility of the proffered
item on other grounds, including hearsay, relevance, or in
criminal cases the right to confrontation. And the opponent
is free also to present evidence that a computer-generated
report is erroneous because, for example, although a proffered
spreadsheet is authentic (i.e., that the output came from a
computer), it is based on unreliable data; or, that although a
webpage containing a defamatory statement is authentic (i.e.,
that the webpage was properly retrieved), it was not placed
on the webpage by the defendant; or evidence that comput-
er-stored documents are not reliable because they are based
on hearsay; or that information on a hard drive was not placed
there by the opposing party.
The notice requirement in both rules, like the notice required
in Rule 902(11) for authenticating business records through
certication, provides adequate opportunity for the opposing
party to challenge the certication. This means that the parties
will know in advance, through a ruling on a motion in limine if
necessary, whether a given certication is satisfactory. If it is not
satisfactory, to establish the appropriate evidence for authenti-
cation, a witness will need to be called at the trial or hearing.
confronting the confrontation clauSe
In People v. Coleman, 2014 IL App (5th) 110274, ¶¶ 144-
153, a representative of Google testied at trial that she pro-
vided the Internet Protocol (IP) address for eight specic mes-
sages pursuant to a police subpoena and that such addresses
were kept by Google in the normal course of business. Police
tracked relevant threatening email messages to the defendant’s
computer through the unique IP addresses. In response to the
defendant’s contention that his right to confrontation had been
violated because no representative of his Internet provider
(AT&T) had testied, the appellate court held that the business
record exception to the hearsay rule provided a sufcient
foundation for allowing the nontestimonial IP addresses into
evidence and for allowing police testimony about them.
In People v. Diggins, 2016 IL App (1st) 142088, over the
defendant’s objection at his bench trial, the trial court admitted
a certied letter from the Firearm Service Bureau of the Illinois
State Police certifying that the defendant had been denied a
rearm owner’s identication card (FOID) based on his having
a pending felony indictment. Not possessing an FOID was
a necessary element for the charged offense of aggravated
unlawful use of a weapon (AAUW). See 720 ILCS 5/24-1.6(a)
(3)(C). Applying the holding in Crawford v. Washington, 541
U.S. 36 (2008), which expressly included “afdavits” in the
class of testimonial statements barred by the confrontation
clause, and further relying on the holding in Melendez-Diaz
v. Massachusetts, 557 U.S. 305 (2009), which had held that
certicates of analysis that reported recovered substances to be
cocaine and provided their weight were testimonial hearsay,
COMMENTARY CONTINUED
325ARTICLE IX. AUTHENTICATION ... RULE 902
COMMENTARY CONTINUED
the appellate court reversed the defendant’s conviction and
remanded the case for a new trial, holding that the admission
of the certied letter constituted a violation of the defendant’s
sixth amendment right to confrontation and that the violation
did not constitute harmless error.
Later, in People v. Cox, 2017 IL App (1st) 151536, a case
described as strikingly similar to Diggins in many respects
(Id. at ¶ 80), the appellate court distinguished the holding in
Diggins based on the fact that, not only did the defendant not
object to the admission of the certied document in the case at
bar, he expressly did not object to its admission.
Still later, in People v. Stevens, 2018 IL App (4th) 150871,
noting that in the pretrial hearing defense counsel did not object
to the admission of the certied report, the appellate court
applied the doctrine of invited error, distinguishing Diggins
and, like the court in Cox, held that there was no ineffective
assistance of counsel.
The takeaway from the above cases, based on the point
that each case provides, is that in a criminal case the evidence
rule alone may not satisfy the requirements for admission. The
confrontation clause must be addressed. Where a defendant
in a criminal case does not object to the admission of certied
documents, there is no “testimonial statement” problem. But
when a defendant charged with a crime objects to the admis-
sion of such evidence on confrontation grounds, to satisfy the
sixth amendment requirement, a witness with knowledge must
be produced. Because the sixth amendment does not apply to
civil cases, there is no confrontation issue in such cases.
computer-generated recordS
As noted above in discussing both IRE 902(11) and under
the heading “ire 902(12) and 902(13),” Illinois has adopted
codied rules dealing explicitly with certication of comput-
erized records. See IREs 902(11) (certied records of regularly
conducted activity), 902(12) (certied records generated by
an electronic process or system), and 902(13) (certied data
copied from an electronic device, storage system, or le). The
latter two rules were adopted effective September 28, 2018.
But before that date, Illinois decisions provided the require-
ments for the admissibility of such records. Following are
decisions that predate the codication of IRE 902(12), address
the requirements for admission of computer-generated business
records, and may be relevant to the requirements for the certi-
cation of such records.
In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C.,
2014 IL App (1st) 121111, the appellate court held that comput-
er-generated records of loan documents and a payoff calculator
document were admissible under the business records excep-
tion to the hearsay rule. For foundational purposes the court
provided these requirements, which it held were satised in the
case: “(1) the electronic computing equipment is recognized
as standard; (2) the input is entered in the regular course of
business reasonably close in time to the happening of the event
recorded; and (3) the foundation testimony establishes that the
sources of the information, method and time of preparation
indicate its trustworthiness and justify its admission.” JPMorgan
Chase, at ¶ 100.
In People v. Eagletail, 2014 IL App (1st) 130252, a prosecu-
tion for DUI, the appellate court held that there was a sufcient
foundation for the admission of a computer-generated copy
of the printout from a breath machine to satisfy the business
records exception to the hearsay rule.
In People v. Nixon, 2015 IL App (1st) 130132, a conviction
for aggravated criminal sexual assault where the central issue
was whether the DNA of a man whose photo the victim initially
identied as the offender had been tested, the appellate court
determined that an inadequate foundation had been laid for
the admission of testimony about a computer-generated busi-
ness record that showed the DNA testing had in fact occurred
and that no association was reported. Although the appellate
court ultimately determined that the error was harmless, in
its analysis concerning the propriety of the admission of the
records, it provided the following foundational requirements
for the admission of computer-generated business records:
“In order to satisfy both [IRE 803(6) and section 115-5
of the Code of Criminal Procedure of 1963], the party
seeking to admit a business record has the burden of
laying an adequate foundation for it, which includes
showing: (1) that the record was made as a memoran-
dum or record of the act; (2) that the record was made
in the regular course of business; and (3) that it was the
326RULE 902 ARTICLE IX. AUTHENTICATION ...
COMMENTARY CONTINUED
regular course of the business to make such a record at
the time of the act or within a reasonable time thereafter.
[Citations.]
“In addition to these requirements, Illinois courts
have consistently held that, to establish an adequate
foundation for a computer-generated record as a busi-
ness record, the proponent must make a further showing.
In the case of computer-generated records, a proper
foundation additionally requires a showing that: [4] stan-
dard equipment was used; [5] the particular computer
generates accurate records when used appropriately;
[6] the computer was used appropriately; and [7] the
sources of the information, the method of recording uti-
lized, and the time of preparation indicate that the record
is trustworthy and should be admitted into evidence.
[Citations.]” People v. Nixon, 2015 IL App (1st) 130132,
¶¶ 110-111 (Internal quotation marks omitted).
Later, in People v. Kent, 2017 IL App (2d) 140917, where
the appellate court reversed and remanded a conviction for rst
degree murder based on the improper admission in evidence
of a Facebook post (see the Facebook discussion of Kent in
the commentary heading under IRE 901(b)(4) supra), the court
also addressed the “no longer dispositive [issue] of this appeal”:
the requirements for a computer-generated business record for
a phone. Id. at ¶ 126. Adopting and applying all of Nixon’s
requirements for a computer-generated business record, the
court held they were not satised in this case. Id. at ¶ 129.
Recently, People v. Brown, 2021 IL App (3rd) 170621, an
appeal from defendant’s conviction for rst degree murder and
aggravated battery, focused on whether foundational require-
ments had been satised to admit defendant’s computer-gen-
erated cell phone records, which were kept in the course of
regularly conducted business.
In Brown, the State presented evidence that an armed
intruder invaded a drug house, demanding money and drugs.
The owner of the house, a drug dealer who was packaging
cocaine in his kitchen at the time, struggled with the intruder in
his kitchen and was shot under his chin at close range, causing
his immediate death. The intruder also shot the victim’s uncle in
the stomach and leg. The uncle testied at trial that defendant
was the intruder who shot both him and the murder victim.
Present in the kitchen during the offenses was a man with the
surname of Wilson. He testied at trial that he did not know
defendant and could not identify him in court as the intruder.
As a rebuttal witness, a police ofcer testied about defen-
dant’s phone records from information he received from Sprint.
His testimony established that, before and after the shootings,
Wilson and defendant exchanged numerous phone calls just
before and after the home invasion and shootings.
The State also produced evidence that two pieces of dread-
locked hair were found on the murder victim’s kitchen oor.
They contained DNA that matched defendant and showed that
at least one of the hairs had a “stretched” appearance, which
indicated that the hair had been pulled out of a person’s head
and did not just fall out. At trial, defendant conceded he had
dreadlocks on the day of the offenses but explained that he
had been at the “cocaine house” (which he did not know to be
the victim’s home) before the date of the shootings to purchase
crack cocaine (Brown, at ¶ 15), and that “big clumps of his hair
would fall out on their own because he was not taking care of
his dreadlocks.” Id. at ¶ 17.
The sole issue on appeal was the propriety of the police of-
cer’s testimony about the computer-generated phone records
he received from Sprint, records that documented phone calls
between Wilson and defendant, and which thus contradicted
both their testimony that they did not know each other and
Wilson’s claim that he had not made the phone calls.
Although the record on appeal contained a certication
pursuant to Federal Rules of Evidence 803(6) and 902(11) from
Sprint’s keeper of records (and FRE 902(11) is substantively
identical to IRE 902(12), which had not been codied at the
time), the appellate court found “there is no clear indication
that the records were ever formally admitted into evidence.”
Id. at ¶ 22. Defendant objected to the ofcer’s testimony about
the phone records based on a lack of sufcient foundation,
contending that “even if the custodian’s certicate had been
admitted, the foundation for admission was still insufcient
because the custodian’s certicate was missing the second set
of foundational elements that was required under the law for
a computer-generated record to be admitted into evidence as
327ARTICLE IX. AUTHENTICATION ... RULE 902
a business record” under the holdings in Nixon and Kent. Id.
at ¶ 30. (For clarication, note that “the second set of founda-
tional elements” referred to are those provided in the bracketed
numbers [4] to [7] given by Nixon and provided supra and
also provided by Brown infra as elements (1) to (4).) The State
responded that the phone records were properly admitted “as
provided for in the amended version of Illinois Rule of Evidence
902, which, according to the State, eliminated the second set of
foundational requirements for a computer-generated record.”
Id. at ¶ 31.
With one justice dissenting based on his belief that error did
not occur in this case and, if it did, it was harmless, the majority
of the appellate court panel noted that IRE 902(12) was adopted
after the trial in this case and, citing People v. Hunter, 2017 IL
121306, ¶¶ 36-37, it therefore rejected the State’s contention
that the rule applied, reasoning that even though IRE 902(12) is
a procedural rule, it could not be retroactively applied.
Stressing the high relevance of the admitted phone evidence
in negatively affecting the credibility of Wilson and defendant,
both of whom denied they knew each other, on the central
issue of whether defendant was the offender, the majority
concluded that, where computer-generated business records
are involved (such as “information that was generated instanta-
neously by a computer when telephone calls were made to or
from defendant’s cell phone”) (Brown, at ¶ 34), the two sets of
foundational requirements provided by Nixon and Kent must
be established by the proponent of the evidence.
As indicated in the discussion of Nixon and Kent above, the
rst set of foundational requirements are those provided in the
business-records rules in both IRE 803(6) and IRE 902(11) (“(1)
that the record was made as a memorandum or record of the act,
(2) that the record was made in the regular course of business,
and (3) that it was the regular course of the business to make
such a record at the time of the act or within a reasonable time
thereafter.”) Brown, at ¶ 34. The second set of requirements are:
“(1) that standard equipment was used; (2) that the particular
computer generates accurate records when used appropriately;
(3) that the computer was used appropriately; and (4) that the
sources of the information, the method of recording, and the
time of preparation indicate that the record is trustworthy and
should be admitted into evidence.” Id.
The Brown court noted that the cell phone records had been
admitted through the testimony of the police ofcer without
“the second set of foundational elements that are required for
the admission of a computer-generated record into evidence
under the business-records exception to the hearsay rule.” Id. at
35. This, the court held, resulted in the trial court’s committing
“an abuse of discretion by allowing the State to present the
testimony of [the police ofcer] regarding the content of the
phone records because the State failed to establish a sufcient
foundation for the admission of the phone records into evi-
dence.” Id. It therefore reversed defendant’s convictions and
remanded the case to the circuit court for trial.
Note that the two sets of foundational requirements provided
in Nixon, Kent, and now Brown, predate Illinois’ codication
of IRE 902(12). (In Brown, that is so because the appellate
court rejected the State’s contention that Rule 902(12) could
be retroactively invoked, without determining whether the rule
would have had an effect on its holding.) Whether the addition
of IRE 902(12) alters the requirements provided by the three
cases arguably remains an open question. But until an Illinois
reviewing court construing IRE 902(12) states otherwise, these
are the takeaways that should be drawn from the three cases:
• Where a witness with knowledge provides testi-
mony at trial about business records solely under
IRE 803(6), only the three requirements of that rule
must be satised.
• Where a certication of business records not con-
nected to computer-generated records is provided
at trial under IRE 902(11), only the three require-
ments of that rule must be satised.
• Where computer-generated business records are
involved, the prudent course is to provide both the
rst set of requirements established by IREs 803(6)
and 902(11), as well as the second set of require-
ments established by the three cases discussed
above.
• Where any computer-generated records (other than
business records) are involved under IRE 902(12),
COMMENTARY CONTINUED
328RULE 903 ARTICLE IX. AUTHENTICATION ...
Rule 903. Subscribing Witness’ Testimony
Unnecessary
e testimony of a subscribing witness is not nec-
essary to authenticate a writing unless required by the
laws of the jurisdiction whose laws govern the validity
of the writing.
Rule 903. Subscribing Witness’s Testimony
A subscribing witness’s testimony is necessary to
authenticate a writing only if required by the law of the
jurisdiction that governs its validity.
Author’s Commentary on Ill. R. Evid. 903
IRE 903 is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December
1, 2011. Relevant Illinois statutes include 735 ILCS 5/8-1601
(related to execution of a deed); 755 ILCS 5/6-4 (related to
admission of a will to probate).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
COMMENTARY CONTINUED
the prudent course is to provide the second set of requirements established by the three cases.
329ARTICLE X. CONTENTS OF WRITINGS ... RULE 1001
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 1001. Denitions at Apply to is Article
In this article:
(a) A “writing” consists of letters, words, numbers,
or their equivalent set down in any form.
(b) A “recording” consists of letters, words, num-
bers, or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or
its equivalent stored in any form.
(d) An “original” of a writing or recording means the
writing or recording itself or any counterpart intended
to have the same eect by the person who executed or
issued it. For electronically stored information, “orig-
inal” means any printout—or other output readable
by sight—if it accurately reects the information. An
“original” of a photograph includes the negative or a
print from it.
(e) A “duplicate” means a counterpart produced by
a mechanical, photographic, chemical, electronic, or
other equivalent process or technique that accurately
reproduces the original.
Rule 1001. Denitions
For purposes of this article the following denitions
are applicable:
(1) Writings and Recordings. “Writings” and
“recordings” consist of letters, words, sounds, or num-
bers, or their equivalent, set down by handwriting,
typewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording,
or other form of data compilation.
(2) Photographs. “Photographs” include still photo-
graphs, X-ray lms, video tapes, motion pictures and
similar or other products or processes which produce
recorded images.
(3) Original. An “original” of a writing or recording
is the writing or recording itself or any counterpart
intended to have the same eect by a person executing
or issuing it. An “original” of a photograph includes
the negative or any print therefrom. If data are stored
in a computer or similar device, any printout or other
output readable by sight, shown to reect the data
accurately, is an “original.”
(4) Duplicate. A “duplicate” is a counterpart pro-
duced by the same impression as the original, or from
the same matrix, or by means of photography, includ-
ing enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately
reproduces the original.
COMMENTARY
Author’s Commentary on Ill. R. Evid. 1001
Note that the four subdivisions of pre-amended FRE 1001,
which had been numbered (1) through (4), now are designated
in FRE 1001 by letters of the alphabet from (a) to (e).
Except for the addition of the word “sounds” in the Illinois
rule, IRE 1001(1) is identical to what was FRE 1001(1) before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011. Note that the amendment to the federal
330RULE 1001 ARTICLE X. CONTENTS OF WRITINGS ...
COMMENTARY CONTINUED
rule resulted in what is now FRE 1001(a) and (b), which
replaced what was formerly designated as FRE 1001(1).
Except for the addition of the phrase “and similar or other
products or processes which produce images” at the end of IRE
1001(2), the rule is identical to what was FRE 1001(2) before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011. That amendment has resulted in what is
now FRE 1001(c). For a relevant Illinois case, see People v.
Taylor, 2011 IL 110067, ¶¶ 42–43 (citing IRE 1001(2), in hold-
ing that a VHS videotape of a DVR recording qualies as an
“original” recording).
IRE 1001(3) is identical to what was FRE 1001(3) before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011. That amendment resulted in what is now
FRE 1001(d). In Taylor, at ¶¶ 42-43, though employing lan-
guage in IRE 1001(3) without specically citing it, the supreme
court held that a VHS videotape of a DVR recording qualies
as an “original” recording.
IRE 1001(4) is identical to what was FRE 1001(4) before
the latter’s amendment solely for stylistic purposes effective
December 1, 2011. That amendment resulted in what is now
FRE 1001(e).
People v. Smith, 2021 IL App (5th) 190066, presents a
lengthy and interesting and different views of the three justices
in addressing both the best evidence rule and the admissibility
of video recordings pursuant to the supreme court’s decision
in People v. Taylor, 2011 IL 110067. For a discussion of that
case, see the heading Application of Taylor under Author’s
Commentary on Ill. R. Evid. 104(a).
331ARTICLE X. CONTENTS OF WRITINGS ... RULE 1002
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is
required in order to prove its content unless these rules
or a federal statute provides otherwise.
Rule 1002. Requirement of Original
To prove the content of a writing, recording, or pho-
tograph, the original writing, recording, or photograph
is required, except as otherwise provided in these rules
or by statute.
Author’s Commentary on Ill. R. Evid. 1002
IRE 1002 is identical to FRE 1002 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011,
except for the modication that distinguishes it from the federal
system.
In People v. Davis, 2014 IL App (4th) 121040, the defendant
contended that a detective’s testimony about a text message
sent to the defendant that stated “Can you meet me for a 30
or 40?” (which was interpreted by the detective to mean a
purchase of $30 or $40 worth of cocaine) violated the best
evidence rule. Citing IRE 1002, the appellate court rejected
that contention, holding:
“The best evidence rule did not apply because the
State did not seek to prove the content or terms
of the text message—it sought to prove defendant
intended to deliver the crack cocaine and used
the text message as circumstantial evidence of
this intent. The actual contents or terms of the text
message did not matter. What mattered is the time
it was received—soon after defendant was found
in possession of 2.1 grams of cocaine—and what
it requested.” Davis, at ¶ 20.
In Waterloo Furniture Components, Ltd. v. Haworth, Inc.,
467 F.3d 641 (7th Cir. 2006), a breach of contract action
involving a patent agreement, in support of its motion for sum-
mary judgment, defendant submitted an afdavit of a witness,
an employee of defendant who had responsibility concerning
a settlement agreement with a third company. The afdavit
asserted that defendant had never licensed its patent to the third
company and thus could not have violated the “favored nation”
provision of its patent agreement with plaintiff, and further
averred that a settlement agreement with the third company,
based on infringement of the patent, in any event had been
nalized after defendant’s patent had lapsed. Plaintiff con-
tended that the best evidence rule had been violated because
the district court did not require the summary judgment record
to contain the original or a copy or the (condential) settlement
agreement with the third company. Pointing out that the “Best
Evidence Rule provides that ‘the production of the original
documents is required to prove the contents of a writing,’”
the court held that “If a witness’s testimony is based on his
rst-hand knowledge of an event as opposed to his knowledge
of the document, however, then Rule 1002 does not apply.”
Waterloo Furniture, 467 F.3d at 648. Because the statements in
the afdavit were based on the witness’s personal knowledge
of the negotiations between defendant and the third company,
not on his knowledge of the agreement between defendant and
the third company, the best evidence rule did not apply to the
witness’s afdavit testimony.
COMMENTARY
332RULE 1003 ARTICLE X. CONTENTS OF WRITINGS ...
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the
original unless a genuine question is raised about the
original’s authenticity or the circumstances make it
unfair to admit the duplicate.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances
it would be unfair to admit the duplicate in lieu of the
original.
Author’s Commentary on Ill. R. Evid. 1003
IRE 1003 is identical to FRE 1003 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011.
See Law Ofces of Colleen M. McLaughlin v. First Star Fin. Corp.,
2011 IL App (1st) 101849, where, in upholding the admission
of a photocopy of a settlement agreement, the appellate court
recognized the adoption of the codied rule in stating that “this
court long ago adopted the Federal Rule of Evidence on the
issue,” citing People v. Bowman, 95 Ill. App. 3d 1137 (1981)
to justify the statement. See also the pre-codication supreme
court decision in People v. Carter, 39 Ill. 2d 31 (1968) (uphold-
ing admission of a copy of the defendant’s confession where
the original had been destroyed).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
333ARTICLE X. CONTENTS OF WRITINGS ... RULE 1004
Rule 1004. Admissibility of Other Evidence of
Content
An original is not required and other evidence of
the content of a writing, recording, or photograph is
admissible if:
(a) all the originals are lost or destroyed, and not by
the proponent acting in bad faith;
(b) an original cannot be obtained by any available
judicial process;
(c) the party against whom the original would be
oered had control of the original; was at that time put
on notice, by pleadings or otherwise, that the original
would be a subject of proof at the trial or hearing; and
fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not
closely related to a controlling issue.
Rule 1004. Admissibility of Other Evidence of
Contents
e original is not required and other evidence of
the contents of a writing, recording, or photograph is
admissible if
(1) Originals Lost or Destroyed. All originals are
lost or have been destroyed, unless the proponent lost
or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be
obtained by any available judicial process or procedure;
or
(3) Original in Possession of Opponent. At a time
when an original was under the control of the party
against whom oered, that party was put on notice, by
the pleadings or otherwise, that the contents would be
a subject of proof at the hearing; or
(4) Collateral Matters. e writing, recording, or
photograph is not closely related to a controlling issue.
Author’s Commentary on Ill. R. Evid. 1004
IRE 1004 is identical to FRE 1004 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011.
IRE 1004 (including the subdivisions that follow) eases Illinois’
recognition of degrees of secondary evidence and provides the
same circumstances as do the federal rules under which the
requirement of the original of a document is relaxed. See also
the Committee’s general commentary in section (13) under the
“Modernization” discussion on page 4 of this guide. Note that
the four subdivisions of pre-amended FRE 1004, which were
numbered (1) through (4), now are designated in FRE 1004 by
letters of the alphabet from (a) to (d).
IRE 1004(1) is identical to FRE 1004(1) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. That amendment has resulted in what is now FRE 1004(a).
See People v. Carter, cited supra in the Author’s Commentary
on Ill. R. Evid. 1003. See also People v. Baptist, 76 Ill. 2d 19
(1979) (approving and addressing parole evidence concerning
contents of a letter destroyed in a house re).
IRE 1004(2) is identical to FRE 1004(2) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. The amendment of the federal rule resulted in what is
now FRE 1004(b).
IRE 1004(3) is identical to FRE 1004(3) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011, except that the Illinois rule deleted as unnecessary the last
portion of what was then FRE 1004(3) (and is now designated
FRE 1004(c)), which requires the failure of the opposing party
to produce the original, it being assumed that the opposing
party has failed to produce the original. The amendment to the
federal rule resulted in what is now FRE 1004(c).
IRE 1004(4) is identical to FRE 1004(4) before the latter’s
amendment solely for stylistic purposes effective December 1,
2011. That amendment results in current FRE 1004(d).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
334RULE 1005 ARTICLE X. CONTENTS OF WRITINGS ...
Author’s Commentary on Ill. R. Evid. 1005
IRE 1005 is identical to FRE 1005 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011.
The rule should be considered in conjunction with IRE 803(8),
which provides the hearsay exception for the admission of
public records and reports. Another relevant rule is Illinois
Supreme Court Rule 216(d), which in its entirety reads:
“If any public records are to be used as evidence,
the party intending to use them may prepare a
copy of them insofar as they are to be used, and
may seasonably present the copy to the adverse
party by notice in writing, and the copy shall
thereupon be admissible in evidence as admitted
facts in the case if otherwise admissible, except
insofar as its inaccuracy is pointed out under oath
by the adverse party in an afdavit led and served
within 28 days after service of the notice.”
Relevant statues are 735 ILCS 5/8-1202 (related to the
process for admitting court records); 735 ILCS 5/8-1206 (proof
may be made by “copies examined and sworn to by credible
witnesses”). For statutes related to the admission of statutes and
reports generally, see 735 ILCS 5/8-1101 et seq., and for stat-
utes related to the admission of records and patents generally,
see 735 ILCS 5/8-1201 et seq.
Rule 1005. Copies of Public Records to Prove
Content
e proponent may use a copy to prove the content of
an ocial record—or of a document that was recorded
or led in a public oce as authorized by law—if these
conditions are met: the record or document is other-
wise admissible; and the copy is certied as correct in
accordance with Rule 902(4) or is testied to be correct
by a witness who has compared it with the original. If
no such copy can be obtained by reasonable diligence,
then the proponent may use other evidence to prove
the content.
Rule 1005. Public Records
e contents of an ocial record, or of a document
authorized to be recorded or led and actually recorded
or led, including data compilations in any form, if
otherwise admissible, may be proved by copy, certied
as correct in accordance with Rule 902 or testied to be
correct by a witness who has compared it with the origi-
nal. If a copy which complies with the foregoing cannot
be obtained by the exercise of reasonable diligence, then
other evidence of the contents may be given.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
335ARTICLE X. CONTENTS OF WRITINGS ... RULE 1006
Author’s Commentary on Ill. R. Evid. 1006
IRE 1006 is identical to FRE 1006 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011.
Examples of cases approving of admission of summaries, well
before the codication of Illinois evidence rules, include
People v. Moone, 334 Ill. 590 (1929); and People v. Sawhill,
299 Ill. 393 (1921), which held that:
“where the originals consist of numerous docu-
ments, books, papers, or records which cannot
conveniently be examined in court, and the fact to
be proved is the general result of an examination
of the whole collection, evidence may be given as
to such result by any competent person who has
examined the documents, provided the result is
capable of being ascertained by calculation***It
has therefore been held that it is in the discretion of
the court to admit such statements or schedules of
gures or the results of the examination of numer-
ous documents or account books to be introduced
in evidence, such statements, schedules, or results
to be veried by the testimony of the witness by
whom they were prepared, allowing the adverse
party an opportunity to examine them before they
are admitted in evidence and to cross-examine the
witness from the original books, where such books
are accessible.” Sawhill, 299 Ill. at 403.
Rule 1006. Summaries to Prove Content
e proponent may use a summary, chart, or cal-
culation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently
examined in court. e proponent must make the
originals or duplicates available for examination or
copying, or both, by other parties at a reasonable time
and place. And the court may order the proponent to
produce them in court.
Rule 1006. Summaries
e contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined
in court may be presented in the form of a chart, sum-
mary, or calculation. e originals, or duplicates, shall
be made available for examination or copying, or both,
by other parties at reasonable time and place. e court
may order that they be produced in court.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
336RULE 1007 ARTICLE X. CONTENTS OF WRITINGS ...
Author’s Commentary on Ill. R. Evid. 1007
IRE 1007 is identical to FRE 1007 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011.
See also the Committee’s general commentary in section (14)
under the “Modernization” discussion on page 4 of this guide,
which indicates that, based on an 1839 supreme court opinion,
the codied rule may represent a substantive change in Illinois.
Rule 1007. Testimony or Statement of a Party to
Prove Content
e proponent may prove the content of a writing,
recording, or photograph by the testimony, deposition,
or written statement of the party against whom the
evidence is oered. e proponent need not account
for the original.
Rule 1007. Testimony or Written Admission of
Party
Contents of writings, recordings, or photographs
may be proved by the testimony or deposition of the
party against whom oered or by that party’s written
admission, without accounting for the nonproduction
of the original.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
337ARTICLE X. CONTENTS OF WRITINGS ... RULE 1008
Author’s Commentary on Ill. R. Evid. 1008
IRE 1008 is identical to FRE 1008 before the latter’s amend-
ment solely for stylistic purposes effective December 1, 2011,
except for the substitution of “Rule 104(a)” for “rule 104,”
without intending a substantive change. Note, however, that
the December 1, 2011 amendment of FRE 1008 changed the
“rule 104” reference to “Rule 104(b),” and claried that the rule
has relevance to the provisions of Rule 1004 (“Admissibility of
Other Evidence of Contents”) and Rule 1005 (“Public Records”).
The Illinois rule’s reference to Rule 104(a) is consistent with
the amended federal rule because IRE Rule 104(a) specically
makes it subject to the provisions of Rule 104(b).
Rule 1008. Functions of the Court and Jury
Ordinarily, the court determines whether the propo-
nent has fullled the factual conditions for admitting
other evidence of the content of a writing, recording,
or photograph under Rule 1004 or 1005. But in a jury
trial, the jury determines—in accordance with Rule
104(b)—any issue about whether:
(a) an asserted writing, recording, or photograph
ever existed;
(b) another one produced at the trial or hearing is
the original; or
(c) other evidence of content accurately reects the
content.
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents
of writings, recordings, or photographs under these rules
depends upon the fulllment of a condition of fact, the
question whether the condition has been fullled is
ordinarily for the court to determine in accordance with
the provisions of Rule 104(a). However, when an issue
is raised (a) whether the asserted writing ever existed, or
(b) whether another writing, recording, or photograph
produced at the trial is the original, or (c) whether other
evidence of contents correctly reects the contents, the
issue is for the trier of fact to determine as in the case of
other issues of fact.
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
COMMENTARY
339ARTICLE XI. MISCELLANEOUS RULES RULE 1101
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE XI. MISCELLANEOUS RULES
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 1101. Applicability of the Rules
(a) To Courts and Judges. ese rules apply to
proceedings before:
· United States district courts;
· United States bankruptcy and magistrate judges;
· United States courts of appeals;
· the United States Court of Federal Claims; and
· the district courts of Guam, the Virgin Islands,
and the Northern Mariana Islands.
(b) To Cases and Proceedings. ese rules apply
in:
· civil cases and proceedings, including bank-
ruptcy, admiralty, and maritime cases;
· criminal cases and proceedings; and
· contempt proceedings, except those in which
the court may act summarily.
(c) Rules on Privilege. e rules on privilege apply
to all stages of a case or proceeding.
(d) Exceptions. ese rules—except for those on
privilege—do not apply to the following:
(1) the court’s determination, under Rule 104(a),
on a preliminary question of fact governing admissi-
bility;
(2) grand-jury proceedings; and
(3) miscellaneous proceedings such as:
· extradition or rendition;
· issuing an arrest warrant, criminal summons,
or search warrant;
· a preliminary examination in a criminal case;
· sentencing;
· granting or revoking probation or supervised
release; and
· considering whether to release on bail or
otherwise.
(e) Other Statutes and Rules. A federal statute or a
rule prescribed by the Supreme Court may provide for
Rule 1101. Applicability of Rules
(a) Except as otherwise provided in paragraphs (b)
and (c), these rules govern proceedings in the courts of
Illinois.
(b) Rules Inapplicable. ese rules (other than
with respect to privileges) do not apply in the following
situations:
(1) Preliminary Questions of Fact. e deter-
mination of questions of fact preliminary to admissi-
bility of evidence when the issue is to be determined
by the court under Rule 104.
(2) Grand Jury. Proceedings before grand juries.
(3) Miscellaneous Proceedings. Proceedings for
extradition or rendition; preliminary examinations in
criminal cases; sentencing; postconviction hearings;
issuance of warrants for arrest, criminal summonses,
and search warrants; and proceedings with respect to
release on bail or otherwise, and contempt proceed-
ings in which the court may act summarily.
(c) Small Claims Actions. ese rules apply to
small claims actions, subject to the application of
Supreme Court Rule 286(b).
340RULE 1101 ARTICLE XI. MISCELLANEOUS RULES
COMMENTARY
admitting or excluding evidence independently from
these rules.
Author’s Commentary on Ill. R. Evid. 1101(a)
IRE 1101(a) is adjusted to distinguish it from the federal
system and to provide that the rules of evidence govern in all
court proceedings, except as provided in IRE 1101(b) and (c).
Author’s Commentary on Ill. R. Evid. 1101(b)
IRE 1101(b) lists proceedings where the evidence rules do
not apply. Because IRE 1101(a) provides that these rules apply
in all proceedings in Illinois courts, except for those provided in
IRE 1101(b) and (c), it was unnecessary to provide a counterpart
to FRE 1101(b) which, since its amendment effective December
1, 2011, separately details federal proceedings where the rules
apply. FRE 1101(d), before its amendment solely for stylistic
purposes effective December 1, 2011 (and which, before its
amendment, bore the same title as IRE 1101(b)), is the federal
rule that provides the exceptions where the rules are not appli-
cable and that closely parallels IRE 1101(b). The provisions
of IRE 1101(b)(1) and (2) and the parallel pre-amended FRE
1101(d)(1) and (2) are identical. The provisions in IRE 1101(b)
(3) and FRE 1101(d)(3) are similar, except for two additions in
IRE 1101(b)(3): (1) the addition of “postconviction hearings,”
which was added by the supreme court by amendment on
April 8, 2013, effective as of that date; and (2) the inclusion of
“contempt proceedings in which the court may act summarily,”
which nevertheless is identical to the third bullet point in FRE
1101(b).
Note that IRE 1101(b)(1), like its federal counterpart in FRE
1101(d)(1), reinforces the principle provided in IRE 104(a)
(as well as in FRE 104(a)) that, in making its determination of
questions of fact preliminary to admissibility of evidence, “the
court is not bound by the rules of evidence except those with
respect to privileges.”
addition of “poStconviction hearingS” in ire 1101(b)(3) and
itS Significance
The addition by the supreme court of “postconviction
hearings” in IRE 1101(b)(3), effective April 8, 2013, was made
to be consistent with section 122-6 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/122-6), a section of Article
122, which is the Post-Conviction Hearing Act. The relevant
portion of section 122-6 reads: “The court may receive proof
by afdavits, depositions, oral testimony, or other evidence.”
Thus, that section grants discretion to the trial court to accept,
in Post-Conviction Hearing Act hearings, testimony that does
not comply with the codied rules of evidence.
See People v. Robinson, 2020 IL 123849 (“At the pleading
stage of postconviction proceedings, all well-pleaded alle-
gations in the petition and supporting afdavits that are not
positively rebutted by the trial record are to be taken as true.
[Citations.] In deciding the legal sufciency of a postconviction
petition, the court is precluded from making factual and cred-
ibility determinations” (id. at ¶ 45); and further holding “that
credibility determinations are made at a third-stage evidentiary
hearing,” not at the second stage. (id. at ¶ 81)); (People v.
Simmons, 2020 IL App (1st) 170650, ¶ 36 (noting the 2013
amendment to the rule and considering the contents of an
afdavit even though it contained hearsay); People v. Velasco,
2018 IL App (1st) 161683, ¶ 119 (nding that hearsay afdavits
indicating that a gang member had bragged to one of the af-
ants about shooting the victim were admissible under the rule
and must be taken as true at the second stage of postconviction
proceedings).
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
341ARTICLE XI. MISCELLANEOUS RULES RULE 1101
Recently, in People v. Brooks, 2021 IL App (4th) 200573,
the appellate court quoted this Commentary’s rst paragraph
(see Brooks, at ¶ 57), in further support of its holding that the
Illinois Rules of Evidence do not apply to second and third-
stage postconviction proceedings. The ultimate result in Brooks
was the reversal and remand of the trial court’s dismissal of sec-
ond-stage proceedings, which alleged attorney ineffectiveness
for the attorney’s failure to investigate a claim of a woman who
claimed to have received a text message from another person
who claimed that he had killed the victim. Reasoning that the
text message was admissible in the postconviction proceedings
despite its hearsay nature, the appellate court held that the trial
court erred in failing to accept as true those hearsay allega-
tions, which were provided by afdavits from the attorney’s
investigator as well as the defendant. The appellate court’s
reversal was based on the principles that the rules of evidence
do not apply in postconviction proceedings and that hearsay
evidence in second-stage proceedings should be accepted as
true if the petitioner shows a constitutional violation, unless the
petitioner’s allegations are afrmatively rebutted by the record.
However, regarding the evidentiary hearing in third-stage pro-
cedures, Brooks claried that, unlike in rst and second-stage
proceeding, at a third-stage hearing, “the trial court acts as a
fact-nder, making credibility determinations and weighing
the evidence.” Id. at ¶ 47. Accordingly, the appellate court
concluded:
“[t]he court may admit the evidence in question
and then mostly—or perhaps even entirely—disre-
gard it, deeming it unreliable or simply not believ-
able. And in making that determination, the trial
court is free to consider all of the other evidence
presented at the third-stage proceeding, including
all of the evidence that was originally presented at
the defendant’s trial at which he was convicted.”
Id. at ¶ 56.
Brooks went on to emphatically state that, though the evi-
dence rules do not apply to third-stage evidentiary proceedings,
the “part of a trial court’s discretion at a third-stage evidentiary
hearing includes the authority to admit questionable evidence
and then to disregard it because, in the court’s judgment, it is
unreliable.” Id. at ¶ 58. (Emphasis in original).
It should be noted that, just before the publication of Brooks,
in People v. Carter, 2021 IL App (4th)180581, the appellate
court had similarly held that “[a]t a third-stage hearing,‘the
trial court acts as a fact-nder, making credibility determina-
tions and weighing the evidence.’” Id. at ¶ 58. In Carter, the
appellate court held that the trial court’s ndings, based on
evidence presented at third stage proceedings, were not against
the weight of the evidence in denying the defendant’s claim of
actual innocence in the postconviction proceeding.
Note that in People v. Gibson, 2018 IL App (1st) 162177,
¶¶ 127-140, the appellate court equated the hearings required
by the Post-Conviction Act with the circuit court hearing
required by the Illinois Torture Inquiry and Relief Commission
Act (TIRC, see 775 ILCS 40/1, et seq.). It thus concluded that
the rules of evidence do not apply at an evidentiary hearing on
a claim referred from the TIRC. Referring to section 50 of the
TIRC Act (775 ILCS 40/50) “as a new species of postconviction
proceeding” (Gibson, at ¶ 135), the appellate court held that
the Illinois Rules of Evidence do not apply to TIRC, and the cir-
cuit court had thus erred in rejecting the defendant’s proffered
hearsay evidence on that court’s stated basis that the defendant
needed to show that the evidence fell within a recognized
exception to the hearsay rule.
amendmentS deleting portionS of ire 1101(b)(3)
As originally codied, IRE 1101(b)(3) included as an excep-
tion to the application of the rules of evidence “sentencing,
or granting or revoking probation, conditional discharge or
supervision.” The exception that related to “granting or revok-
ing probation” was stricken by the supreme court effective
January 6, 2015. That was done for two reasons. First, the word
“granting” was unnecessary as it was preceded by the word
“sentencing,” a word that encompasses the grant of probation
and it thus was redundant. That January 6, 2015 amendment,
however, resulted in the unintentional retention of the phrase
“sentencing, conditional discharge or supervision.” Effective
September 17, 2019, the supreme court struck the words
following “sentencing.” As in the case of the earlier amend-
ment, that amendment occurred because the dispositions of
COMMENTARY CONTINUED
342RULE 1101 ARTICLE XI. MISCELLANEOUS RULES
COMMENTARY CONTINUED
conditional discharge and supervision are incorporated in the
concept of sentencing, thus rendering those words redundant
and therefore superuous.
The second reason for the January 6, 2015 amendment,
which deleted the exception for the rules of evidence for
probation revocation proceedings, was that the exception
likely would have represented a substantive change in Illinois
law. See, for example, People v. Renner, 321 Ill. App. 3d 1022
(2001), where the appellate court denied the State’s appeal
from a trial court ruling that granted a probationer’s motion
in limine to exclude a certied laboratory report of results of
the probationer’s urine test at her probation revocation hearing.
The appellate court stated that “hearsay evidence is not compe-
tent evidence in probation revocation proceedings; therefore,
hearsay testimony is not competent to sustain the State’s burden
of proof....” Renner, 321 Ill. App. 3d, at 1026.
Note, however, that FRE 1101(d)(3), both before its amend-
ment effective December 1, 2011 and since, provides that the
Federal Rules of Evidence do not apply in probation revocation
proceedings; and that the current version of FRE 1101(d)(3)
(effective as of December 1, 2011) adds revocation of “super-
vised release.” Thus, in federal proceedings, reliable hearsay
evidence is admissible. See, e.g., U.S. v. Pratt, 52 F.3d 671,
675 (7th Cir. 1995) (citing FRE 1103(d)(3) in allowing hearsay
testimony that satised the reliability requirement).
Note also that section 115-5(c)(2) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115-5(c)(2)) allows admissibil-
ity of investigative records (pursuant to the business records
exception to the hearsay rule) for “technical violations” of
probation and supervision (and presumably of conditional
discharge). It denes a “technical violation” as “a breach of a
sentencing order but does not include an allegation of a subse-
quent criminal act asserted in a formal criminal charge.” Most
likely, in cases involving technical violations, the statute will be
invoked, while, in cases involving revocation based on criminal
conduct, the State will be required to abide by evidence rules,
presenting witnesses with rst-hand knowledge rather than
relying on hearsay to satisfy its burden of proof. As in federal
proceedings, for technical violations of probation, conditional
discharge, and supervision, “reliability” of information should
be the standard in Illinois.
exampleS of Statutory exceptionS from the ruleS of evidence
Regarding IRE 1101(b)(3)’s provision that the rules of evi-
dence do not apply to “proceedings with respect to release on
bail or otherwise,” see section 110-5(a) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/110-5(a)), which provides that
“[a]ll evidence shall be admissible if it is relevant and reliable
regardless of whether it would be admissible under the rules
of evidence applicable at criminal trials.” See also People v.
Simmons, 2019 IL App (1st) 191253, ¶ 12 (citing the statute and
holding that “hearsay evidence is liberally permitted” when a
court determines the amount of bail and conditions of release).
Though IRE 1101(b) does not address it, in a “discharge hear-
ing” (a hearing to determine the sufciency of the evidence that
is demanded by an unt defendant in a criminal proceeding or
one that is held for a defendant who cannot become t to stand
trial), section 104-25(a) of the Criminal Code of Procedure of
1963 allows hearsay evidence for proof of “secondary matters”:
“The court may admit hearsay or afdavit evidence
on secondary matters such as testimony to establish
the chain of possession of physical evidence, lab-
oratory reports, authentication of transcripts taken
by ofcial reporters, court and business records,
and public documents.” 725 ILCS 5/104-25(a).
Author’s Commentary on Ill. R. Evid. 1101(c)
IRE 1101(c), which provides that the rules of evidence apply
in small claims actions “subject to the application of Supreme
Court Rule 286(b),” differs from both the amended and current
versions of FRE 1101(c). The federal rule provides that the “rules
on privilege apply to all stages of a case or proceeding.” The
Illinois rules do the same by providing for privilege through the
incorporation of that protection in the parenthetical in the rst
sentence of IRE 1101(b). There is no federal counterpart to IRE
1101(c) because there are no federal small claims proceedings.
Illinois Supreme Court Rule 286(b), which is referenced in
IRE 1101(c), permits the trial court to “adjudicate the dispute at
an informal hearing” in small claims cases. It allows the court
to relax the rules of procedure and the rules of evidence, and
it also allows the court to “conduct or participate in direct and
343ARTICLE XI. MISCELLANEOUS RULES RULE 1102
COMMENTARY
Rule 1102. Amendments
ese rules may be amended as provided in 28
U.S.C. §2072.
[fRe 1102 noT AdoPTed�]
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 1102
The Illinois rules do not provide for an explicit and separate
rule for amendments as does FRE 1102. It is clear, however, that
the Illinois Supreme Court has authority to make amendments
(and has done so), and also that IRE 101 recognizes the ability
of the General Assembly to provide statutory rules of evidence.
cross-examination of any witness or party.” Rule 286(b) in its
entirety reads as follows:
“In any small claims case, the court may, on its
own motion or on motion of any party, adjudicate
the dispute at an informal hearing. At the informal
hearing all relevant evidence shall be admissible
and the court may relax the rules of procedure
and the rules of evidence. The court may call any
person present at the hearing to testify and may
conduct or participate in direct and cross-exam-
ination of any witness or party. At the conclusion
of the hearing the court shall render judgment and
explain the reasons therefor to all parties.”
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 1101(d)
There is no separate IRE 1101(d). As pointed out above in
the Author’s Commentary on IRE 1101(b), the provisions of
FRE 1101(d) are incorporated into and are nearly identical to
IRE 1101(b).
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 1101(e)
FRE 1101(e), in its amended form effective December 1,
2011, deleted the specic references to numerous statutes and
rules that were provided in its predecessor version. When the
Illinois rules were adopted, the federal rule was not adopted
because it applied specically to federal proceedings. The topic
addressed by current FRE 1101(e) (that a statue or a supreme
court rule may supply a rule of evidence), is addressed in IRE
101.
COMMENTARY CONTINUED
344RULE 1102 ARTICLE XI. MISCELLANEOUS RULES
ILLINOIS RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Rule 1103. Title
ese rules may be cited as the Federal Rules of
Evidence.
Rule 1102. Title
ese rules may be known and cited as the Illinois
Rules of Evidence.
COMMENTARY
Author’s Commentary on Ill. R. Evid. 1102
IRE 1102 is the Illinois counterpart to FRE 1103.
345
APPendIx A
725 ILCS 5/115-7.3. Evidence in certain cases.
Sec. 115-7.3. Evidence in certain cases.
(a) is Section applies to criminal cases in
which:
(1) the defendant is accused of predatory crim-
inal sexual assault of a child, aggravated criminal
sexual assault, criminal sexual assault, aggravated
criminal sexual abuse, criminal sexual abuse, child
pornography, aggravated child pornography,
criminal transmission of HIV, or child abduction
as dened in paragraph (10) of subsection (b) of
Section 10-5 of the Criminal Code of 1961 or the
Criminal Code of 2012;
(2) the defendant is accused of battery, aggra-
vated battery, rst degree murder, or second de-
gree murder when the commission of the oense
involves sexual penetration or sexual conduct as
dened in Section 11-0.1 of the Criminal Code
of 2012; or
(3) the defendant is tried or retried for any
of the oenses formerly known as rape, deviate
sexual assault, indecent liberties with a child, or
aggravated indecent liberties with a child.
(b) If the defendant is accused of an oense set
forth in paragraph (1) or (2) of subsection (a) or the
defendant is tried or retried for any of the oenses
set forth in paragraph (3) of subsection (a), evidence
of the defendant’s commission of another oense
or oenses set forth in paragraph (1), (2), or (3) of
subsection (a), or evidence to rebut that proof or an
inference from that proof, may be admissible (if that
evidence is otherwise admissible under the rules of
evidence) and may be considered for its bearing on
any matter to which it is relevant.
(c) In weighing the probative value of the evi-
dence against undue prejudice to the defendant, the
court may consider:
(1) the proximity in time to the charged or
predicate oense;
(2) the degree of factual similarity to the
charged or predicate oense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution
intends to oer evidence under this Section, it must
disclose the evidence, including statements of wit-
nesses or a summary of the substance of any testi-
mony, at a reasonable time in advance of trial, or
during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is oered
under this Section, proof may be made by specic
instances of conduct, testimony as to reputation, or
testimony in the form of an expert opinion, except
that the prosecution may oer reputation testimony
only after the opposing party has oered that testi-
mony.
(f) In prosecutions for a violation of Section 10-
2, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-
3.05, 12-4, 12-13, 12-14, 12-14.1, 12-15, 12-16, or
18-5 of the Criminal Code of 1961 or the Criminal
Code of 2012, involving the involuntary delivery of
a controlled substance to a victim, no inference may
be made about the fact that a victim did not consent
to a test for the presence of controlled substances.
(Source: P.A. 95-892, e. 1-1-09; P.A. 96-1551, Art. 1,
§ 965, e. 7-1-11; P.A. 97-1109, § 15-60, e. 1-1-13;
P.A. 97-1150, § 635, e. 1-25-13; P.A. 98-160, § 5,
e. 1-1-14.)
346
APPendIx b
725 ILCS 5/115-7.4. Evidence in domestic violence cases.
Sec. 115-7.4. Evidence in domestic violence cases.
(a) In a criminal prosecution in which the defen-
dant is accused of an oense of domestic violence
as dened in paragraphs (1) and (3) of Section 103
of the Illinois Domestic Violence Act of 1986, or
rst degree murder or second degree murder when
the commission of the oense involves domestic
violence, evidence of the defendant’s commission of
another oense or oenses of domestic violence is
admissible, and may be considered for its bearing on
any matter to which it is relevant.
(b) In weighing the probative value of the evi-
dence against undue prejudice to the defendant, the
court may consider:
(1) the proximity in time to the charged or
predicate oense;
(2) the degree of factual similarity to the
charged or predicate oense; or
(3) other relevant facts and circumstances.
(c) In a criminal case in which the prosecution
intends to oer evidence under this Section, it must
disclose the evidence, including statements of wit-
nesses or a summary of the substance of any testi-
mony, at a reasonable time in advance of trial, or
during trial if the court excuses pretrial notice on
good cause shown.
(d) In a criminal case in which evidence is oered
under this Section, proof may be made by specic
instances of conduct, testimony as to reputation, or
testimony in the form of an expert opinion, except
that the prosecution may oer reputation testimony
only after the opposing party has oered that testi-
mony.
(Source: P.A. 95-360, e. 8-23-07; P.A. 97-1036, § 5,
e. 8-20-12.)
750 ILCS 60/103. Denitions.
Sec. 103. Denitions. For the purposes of this Act, the following terms shall have the following meanings:
(1) “Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal
liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person
in loco parentis.
* * *
(3) “Domestic violence” means abuse as dened in paragraph (1).
* * *
347
APPendIx c
725 ILCS 5/115-20. Evidence of prior conviction.
Sec. 115-20. Evidence of prior conviction.
(a) Evidence of a prior conviction of a defendant
for domestic battery, aggravated battery committed
against a family or household member as dened
in Section 112A-3, stalking, aggravated stalking, or
violation of an order of protection is admissible in a
later criminal prosecution for any of these types of
oenses when the victim is the same person who was
the victim of the previous oense that resulted in
conviction of the defendant.
(b) If the defendant is accused of an oense set
forth in subsection (a) or the defendant is tried or
retried for any of the oenses set forth in subsec-
tion (a), evidence of the defendant’s conviction for
another oense or oenses set forth in subsection
(a) may be admissible (if that evidence is otherwise
admissible under the rules of evidence) and may be
considered for its bearing on any matter to which it
is relevant if the victim is the same person who was
the victim of the previous oense that resulted in
conviction of the defendant.
(c) In weighing the probative value of the evi-
dence against undue prejudice to the defendant, the
court may consider:
(1) the proximity in time to the charged or
predicate oense;
(2) the degree of factual similarity to the
charged or predicate oense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution
intends to oer evidence under this Section, it must
disclose the evidence, including statements of wit-
nesses or a summary of the substance of any testi-
mony, at a reasonable time in advance of trial, or
during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is oered
under this Section, proof may be made by specic
instances of conduct as evidenced by proof of con-
viction, testimony as to reputation, or testimony in
the form of an expert opinion, except that the prose-
cution may oer reputation testimony only after the
opposing party has oered that testimony.
(Source: P.A. 90-387, e. 1-1-98.)
348
APPendIx d
735 ILCS 5/8-1901. Admission of liability - Eect.
Sec. 8-1901. Admission of liability - Eect. e
providing of, or payment for, medical, surgical, hospi-
tal, or rehabilitation services, facilities, or equipment
by or on behalf of any person, or the oer to provide,
or pay for, any one or more of the foregoing, shall not
be construed as an admission of any liability by such
person or persons. Testimony, writings, records, reports
or information with respect to the foregoing shall not
be admissible in evidence as an admission of any liabil-
ity in any action of any kind in any court or before any
commission, administrative agency, or other tribunal
in this State, except at the instance of the person or per-
sons so making any such provision, payment or oer.
(Source: P.A. 82-280, § 8-1901, e. 7-1-82; P.A. 94-
677, § 330, e. 8-25-05 (held unconstitutional); re-
enacted by P.A. 97-1145, § 5, e. 1-18-13.)
349
APPendIx e
725 ILCS 5/115-7. Prior sexual activity or reputation as evidence.
Sec. 115-7. Prior sexual activity or reputation as
evidence.
a. In prosecutions for predatory criminal sexual
assault of a child, aggravated criminal sexual assault,
criminal sexual assault, aggravated criminal sexual
abuse, criminal sexual abuse, or criminal transmission
of HIV; and in prosecutions for battery and aggravated
battery, when the commission of the oense involves
sexual penetration or sexual conduct as dened in Sec-
tion 11-0.1 of the Criminal Code of 2012;1 and with
the trial or retrial of the oenses formerly known as
rape, deviate sexual assault, indecent liberties with a
child, and aggravated indecent liberties with a child,
the prior sexual activity or the reputation of the alleged
victim or corroborating witness under Section 115-7.3
of this Code is inadmissible except (1) as evidence con-
cerning the past sexual conduct of the alleged victim
or corroborating witness under Section 115-7.3 of this
Code with the accused when this evidence is oered by
the accused upon the issue of whether the alleged vic-
tim or corroborating witness under Section 115-7.3 of
this Code consented to the sexual conduct with respect
to which the oense is alleged; or (2) when constitu-
tionally required to be admitted.
b. No evidence admissible under this Section shall
be introduced unless ruled admissible by the trial judge
after an oer of proof has been made at a hearing to be
held in camera in order to determine whether the de-
fense has evidence to impeach the witness in the event
that prior sexual activity with the defendant is denied.
Such oer of proof shall include reasonably specic in-
formation as to the date, time and place of the past
sexual conduct between the alleged victim or corrobo-
rating witness under Section 115-7.3 of this Code and
the defendant. Unless the court nds that reasonably
specic information as to date, time or place, or some
combination thereof, has been oered as to prior sexual
activity with the defendant, counsel for the defendant
shall be ordered to refrain from inquiring into prior
sexual activity between the alleged victim or corrobo-
rating witness under Section 115-7.3 of this Code and
the defendant. e court shall not admit evidence un-
der this Section unless it determines at the hearing that
the evidence is relevant and the probative value of the
evidence outweighs the danger of unfair prejudice. e
evidence shall be admissible at trial to the extent an
order made by the court species the evidence that may
be admitted and areas with respect to which the alleged
victim or corroborating witness under Section 115-7.3
of this Code may be examined or cross examined.
(Source: P.A. 89-428, e. 12-13-95; 89-462, e.
5-29-96; 90-132, e. 1-1-98., P.A. 96-1551, e. 7-1-
11; P.A. 97-1150, e. 1-25-13.)
350
APPendIx f
735 ILCS 5/8-2801. Admissibility of evidence; prior sexual activity or reputation.
Sec. 8-2801. Admissibility of evidence; prior
sexual activity or reputation.
(a) Evidence generally inadmissible. e fol-
lowing evidence is not admissible in any civil pro-
ceeding except as provided in subsections (b) and
(c):
(1) evidence oered to prove that any victim
engaged in other sexual behavior; or
(2) evidence oered to prove any victim’s sex-
ual predisposition.
(b) Exceptions.
(1) In a civil case, the following evidence is ad-
missible, if otherwise admissible under this Act:
(A) evidence of specic instances of sexual
behavior by the victim oered to prove that a
person other than the accused was the source of
semen, injury, or other physical evidence; and
(B) evidence of specic instances of sexual
behavior by the victim with respect to the per-
son accused of the sexual misconduct oered
by the accused to prove consent by the victim.
(c) Procedure to determine admissibility.
(1) A party intending to oer evidence under
subsection (b) must:
(A) le a written motion at least 14 days
before trial specically describing the evidence
and stating the purpose for which it is oered
unless the court, for good cause requires a dif-
ferent time for ling or permits ling during
trial; and
(B) serve the motion on all parties and noti-
fy the victim or, when appropriate, the victim’s
guardian or representative.
(2) Before admitting evidence under this Sec-
tion the court must conduct a hearing in camera
and aord the victim and parties a right to attend
and be heard. e motion, related papers, and the
record of the hearing must be sealed and remain
under seal unless the court orders otherwise.
(Source: P.A. 96-307, e. 1-1-10.)
351
APPendIx G
705 ILCS 405/5-150. Admissibility of evidence and adjudications in other proceedings.
Sec. 5-150. Admissibility of evidence and
adjudications in other proceedings.
(1) Evidence and adjudications in proceedings
under this Act shall be admissible:
(a) in subsequent proceedings under this Act
concerning the same minor; or
(b) in criminal proceedings when the court is
to determine the amount of bail, tness of the de-
fendant or in sentencing under the Unied Code
of Corrections; or
(c) in proceedings under this Act or in crimi-
nal proceedings in which anyone who has been
adjudicated delinquent under Section 5-105 is to
be a witness including the minor or defendant if
he or she testies, and then only for purposes of
impeachment and pursuant to the rules of evi-
dence for criminal trials; or
(d) in civil proceedings concerning causes of
action arising out of the incident or incidents
which initially gave rise to the proceedings under
this Act.
(2) No adjudication or disposition under this
Act shall operate to disqualify a minor from subse-
quently holding public oce nor shall operate as a
forfeiture of any right, privilege or right to receive
any license granted by public authority.
(3) e court which adjudicated that a minor has
committed any oense relating to motor vehicles
prescribed in Sections 4-102 and 4-103 of the Illi-
nois Vehicle Code shall notify the Secretary of State
of that adjudication and the notice shall constitute
sucient grounds for revoking that minor’s driver’s
license or permit as provided in Section 6-205 of the
Illinois Vehicle Code; no minor shall be considered
a criminal by reason thereof, nor shall any such ad-
judication be considered a conviction.
(Source: P.A. 90-590, e. 1-1-99.)
352
APPendIx h
735 ILCS 5/2-1102. Examination of adverse party or agent.
Sec. 2-1102. Examination of adverse party or
agent. Upon the trial of any case any party thereto or
any person for whose immediate benet the action is
prosecuted or defended, or the ocers, directors, man-
aging agents or foreman of any party to the action, may
be called and examined as if under cross-examination
at the instance of any adverse party. e party calling
for the examination is not concluded thereby but may
rebut the testimony thus given by countertestimony
and may impeach the witness by proof of prior incon-
sistent statements.
(Source: P.A. 82-280, e. 7-1-82.)
Supreme Court Rule 238. Impeachment of Witnesses; Hostile Witnesses.
Rule 238. Impeachment of Witnesses; Hostile
Witnesses.
(a) e credibility of a witness may be attacked
by any party, including the party calling the witness.
(b) If the court determines that a witness is hos-
tile or unwilling, the witness may be examined by
the party calling the witness as if under cross-exam-
ination.
Amended February 19, 1982, eective April 1, 1982;
amended April 11, 2001, eective immediately.
353
APPendIx I
725 ILCS 5/115-10.1. Admissibility of Prior Inconsistent Statements.
Sec. 115-10.1. Admissibility of Prior Inconsis-
tent Statements. In all criminal cases, evidence of a
statement made by a witness is not made inadmissible
by the hearsay rule if
(a) the statement is inconsistent with his testi-
mony at the hearing or trial, and
(b) the witness is subject to cross-examination
concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or
other proceeding, or
(2) narrates, describes, or explains an event
or condition of which the witness had personal
knowledge, and
(A) the statement is proved to have been
written or signed by the witness, or
(B) the witness acknowledged under oath
the making of the statement either in his tes-
timony at the hearing or trial in which the ad-
mission into evidence of the prior statement
is being sought, or at a trial, hearing, or other
proceeding, or
(C) the statement is proved to have been
accurately recorded by a tape recorder, video-
tape recording, or any other similar electronic
means of sound recording.
Nothing in this Section shall render a prior inconsis-
tent statement inadmissible for purposes of impeach-
ment because such statement was not recorded or oth-
erwise fails to meet the criteria set forth herein.
(Source: P.A. 83-1042, e. 7-1-84.)
354
APPendIx J
725 ILCS 5/115-12. Substantive Admissibility of Prior Identication.
Sec. 115-12. Substantive Admissibility of Prior
Identication. A statement is not rendered inadmis-
sible by the hearsay rule if (a) the declarant testies at
the trial or hearing, and (b) the declarant is subject to
cross-examination concerning the statement, and (c)
the statement is one of identication of a person made
after perceiving him.
(Source: P.A. 83-367, e. 1-1-84.)
355
APPendIx K
725 ILCS 5/115-13. Hearsay exception; statements by victims of sex oenses to medical personnel.
[Effective prior to July 1, 2011:]
Sec. 115-13. Hearsay exception; statements by
victims of sex oenses to medical personnel. In
a prosecution for violation of Section 12-13, 12-14,
12-14.1, 12-15 or 12-16 of the “Criminal Code of
1961”, statements made by the victim to medical per-
sonnel for purposes of medical diagnosis or treatment
including descriptions of the cause of symptom, pain
or sensations, or the inception or general character of
the cause or external source thereof insofar as reason-
ably pertinent to diagnosis or treatment shall be admit-
ted as an exception to the hearsay rule.
[Effective July 1, 2011 and as amended January 25, 2013 (with
portions added on July 1, 2011 underlined):]
Sec. 115-13. Hearsay exception; statements by
victims of sex oenses to medical personnel. In a
prosecution for violation of Section 11-1.20, 11-1.30,
11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15 or 12-16 of the Criminal Code of 1961 or the
Criminal Code of 2012, statements made by the victim
to medical personnel for purposes of medical diagno-
sis or treatment including descriptions of the cause of
symptom, pain or sensations, or the inception or gen-
eral character of the cause or external source thereof in-
sofar as reasonably pertinent to diagnosis or treatment
shall be admitted as an exception to the hearsay rule.
(Source: P.A. 89-428, e. 12-13-95; 89-462, e.
5-29-96; P.A. 96-1551, e. 7-1-11; P.A. 97-1150, §
635, e. 1-25-13.)
356
APPendIx l
725 ILCS 5/115-5. Business records as evidence.
Sec. 115-5. Business records as evidence.
(a) Any writing or record, whether in the form
of an entry in a book or otherwise, made as a mem-
orandum or record of any act, transaction, occur-
rence, or event, shall be admissible as evidence of
such act, transaction, occurrence, or event, if made
in regular course of any business, and if it was the
regular course of such business to make such memo-
randum or record at the time of such act, transac-
tion, occurrence, or event or within a reasonable
time thereafter.
All other circumstances of the making of such
writing or record, including lack of personal knowl-
edge by the entrant or maker, may be shown to aect
its weight, but such circumstances shall not aect its
admissibility.
e term “business,” as used in this Section, in-
cludes business, profession, occupation, and calling
of every kind.
(b) If any business, institution, member of a
profession or calling, or any department or agency
of government, in the regular course of business or
activity has kept or recorded any memorandum,
writing, entry, print, representation or combination
thereof, of any act, transaction, occurrence, or event,
and in the regular course of business has caused any
or all of the same to be recorded, copied, or repro-
duced by any photographic, photostatic, microlm,
micro-card, miniature photographic, optical imag-
ing, or other process which accurately reproduces or
forms a medium for so reproducing the original, the
original may be destroyed in the regular course of
business unless its preservation is required by law.
Such reproduction, when satisfactorily identied, is
as admissible in evidence as the original itself in any
proceeding whether the original is in existence or not
and an enlargement or facsimile of such reproduc-
tion is likewise admissible in evidence if the original
reproduction is in existence and available for inspec-
tion under direction of court. e introduction of
a reproduced record, enlargement, or facsimile does
not preclude admission of the original. is Section
shall not be construed to exclude from evidence any
document or copy thereof which is otherwise admis-
sible under the rules of evidence.
(c) No writing or record made in the regular
course of any business shall become admissible as
evidence by the application of this Section if:
(1) Such writing or record has been made by
anyone in the regular course of any form of hos-
pital or medical business; or
(2) Such writing or record has been made by
anyone during an investigation of an alleged of-
fense or during any investigation relating to pend-
ing or anticipated litigation of any kind, except
during a hearing to revoke a sentence of proba-
tion or conditional discharge or an order of court
supervision that is based on a technical violation
of a sentencing order when the hearing involves a
probationer or defendant who has transferred or
moved from the county having jurisdiction over
the original charge or sentence. For the purposes
of this subsection (c), “technical violation” means
a breach of a sentencing order but does not in-
clude an allegation of a subsequent criminal act
asserted in a formal criminal charge.
(d) Upon request of the moving party and with
reasonable notice given to the opposing party, in a
357
criminal prosecution in which the defendant is ac-
cused of an oense under Article 16 or 17 of the
Criminal Code of 1961 or the Criminal Code of
2012, the court may, after a hearing, for good cause
and upon appropriate safeguards, permit live foun-
dational testimony business records as evidence, sub-
ject to cross-examination, in open court by means of
a contemporaneous audio and video transmission
from outside of this State.
(Source: P.A. 91-548, e. 1-1-00; P.A. 98-579, e. 1-1-
14.)
Supreme Court Rule 236. Admission of Business Records in Evidence.
Rule 236. Admission of Business Records in
Evidence
(a) Any writing or record, whether in the form of
any entry in a book or otherwise, made as a mem-
orandum or record of any act, transaction, occur-
rence, or event, shall be admissible as evidence of
the act, transaction, occurrence, or event, if made
in the regular course of any business, and if it was
the regular course of the business to make such a
memorandum or record at the time of such an act,
transaction, occurrence, or event or within a reason-
able time thereafter. All other circumstances of the
making of the writing or record, including lack of
personal knowledge by the entrant or maker, may
be shown to aect its weight, but shall not aect
its admissibility. e term “business,” as used in this
rule, includes business, profession, occupation, and
calling of every kind.
(b) Although police accident reports may other-
wise be admissible in evidence under the law, subsec-
tion (a) of this rule does not allow such writings to
be admitted as a record or memorandum made in
the regular course of business.
Amended August 9, 1983, eective October 1, 1983;
amended April 1, 1992, eective August 1, 1992.
358
APPendIx m
725 ILCS 5/115-5.1. Records of the coroner’s medical or laboratory examiner as evidence.
Sec. 115-5.1. Records of the coroner’s medical
or laboratory examiner as evidence. In any civil or
criminal action the records of the coroner’s medical or
laboratory examiner summarizing and detailing the
performance of his or her ocial duties in performing
medical examinations upon deceased persons or autop-
sies, or both, and kept in the ordinary course of busi-
ness of the coroner’s oce, duly certied by the county
coroner or chief supervisory coroner’s pathologist or
medical examiner, shall be received as competent evi-
dence in any court of this State, to the extent permit-
ted by this Section. ese reports, specically including
but not limited to the pathologist’s protocol, autopsy
reports and toxicological reports, shall be public docu-
ments and thereby may be admissible as prima facie
evidence of the facts, ndings, opinions, diagnoses and
conditions stated therein.
A duly certied coroner’s protocol or autopsy report,
or both, complying with the requirements of this Sec-
tion may be duly admitted into evidence as an excep-
tion to the hearsay rule as prima facie proof of the cause
of death of the person to whom it relates. e records
referred to in this Section shall be limited to the records
of the results of post-mortem examinations of the nd-
ings of autopsy and toxicological laboratory examina-
tions.
Persons who prepare reports or records oered in
evidence hereunder may be subpoenaed as witnesses
in civil or criminal cases upon the request of either
party to the cause. However, if such person is dead,
the county coroner or a duly authorized ocial of the
coroner’s oce may testify to the fact that the examin-
ing pathologist, toxicologist or other medical or labo-
ratory examiner is deceased and that the oered report
or record was prepared by such deceased person. e
witness must further attest that the medical report or
record was prepared in the ordinary and usual course
of the deceased person’s duty or employment in confor-
mity with the provisions of this Section.
(Source: P.A. 82-783, e. 7-13-82.)
359
APPendIx n
725 ILCS 5/115-10.6. Hearsay exception for intentional murder of a witness. [Repealed]
Sec. 115-10.6. Hearsay exception for intentional
murder of a witness. [Repealed]
(a) A statement is not rendered inadmissible by
the hearsay rule if it is oered against a party that has
killed the declarant in violation of clauses (a)(1) and
(a)(2) of Section 9-1 of the Criminal Code of 1961
intending to procure the unavailability of the declar-
ant as a witness in a criminal or civil proceeding.
(b) While intent to procure the unavailability
of the witness is a necessary element for the intro-
duction of the statements, it need not be the sole
motivation behind the murder which procured the
unavailability of the declarant as a witness.
(c) e murder of the declarant may, but need
not, be the subject of the trial at which the state-
ment is being oered. If the murder of the declarant
is not the subject of the trial at which the statement
is being oered, the murder need not have ever been
prosecuted.
(d) e proponent of the statements shall give
the adverse party reasonable written notice of its in-
tention to oer the statements and the substance of
the particulars of each statement of the declarant.
For purposes of this Section, identifying the loca-
tion of the statements in tendered discovery shall be
sucient to satisfy the substance of the particulars
of the statement.
(e) e admissibility of the statements shall be
determined by the court at a pretrial hearing. At the
hearing, the proponent of the statement bears the
burden of establishing 3 criteria by a preponderance
of the evidence:
(1) rst, that the adverse party murdered the
declarant and that the murder was intended to
cause the unavailability of the declarant as a wit-
ness;
(2) second, that the time, content, and cir-
cumstances of the statements provide sucient
safeguards of reliability;
(3) third, the interests of justice will best be
served by admission of the statement into evi-
dence.
(f) e court shall make specic ndings as to
each of these criteria on the record before ruling on
the admissibility of said statements.
(g) is Section in no way precludes or changes
the application of the existing common law doctrine
of forfeiture by wrongdoing.
(Source: P.A. 95-1004, e. 12-8-08; repealed by P.A.
99-243, e. 8-3-15.)
725 ILCS 5/115-10.7. Admissibility of prior statements of an unavailable witness whose absence was
wrongfully procured. [Repealed]
Sec. 115-10.7. Admissibility of prior statements
of an unavailable witness whose absence was
wrongfully procured. [Repealed]
(a) Legislative intent. e Illinois General As-
sembly nds that no party to a criminal case who
wrongfully procures the unavailability of a witness
should be allowed to benet from such wrongdoing
by depriving the trier of fact of relevant testimony.
(b) A statement of a witness is not excluded at the
trial or hearing of any defendant by the hearsay rule
or as a violation of any right to confront witnesses if
the witness was killed, bribed, kidnapped, secreted,
360
intimidated, or otherwise induced by a party, or one
for whose conduct such party is legally responsible,
to prevent the witness from being available to testify
at such trial or hearing.
(c) e party seeking to introduce the statement
shall disclose the statement suciently in advance of
trial or hearing to provide the opposing party with
a fair opportunity to meet it. e disclosure shall
include notice of an intent to oer the statement,
including the identity of the declarant.
(d) Prior to ruling on the admissibility of a state-
ment under this Section, the court shall conduct a
hearing outside the presence of the jury. During the
course of the hearing the court may allow the parties
to proceed by way of proer. Except in cases where
a preponderance of the evidence establishes that the
defendant killed the declarant, the party seeking to
introduce the statement shall be required to show by
a preponderance of the evidence that the party who
caused the unavailability of the witness did so with
the intent or motive that the witness be unavailable
for trial or hearing. e court is not required to nd
that the conduct or wrongdoing amounts to a crimi-
nal act.
(e) Nothing in this Section shall be construed to
prevent the admissibility of statements under exist-
ing hearsay exceptions.
(Source: P.A. 96-337, e. 8-11-09; repealed by P.A 99-
243, e. 8-3-15.)
361
APPendIx o
725 ILCS 5/115-10.2. Admissibility of prior statements when witness refused to testify despite a court
order to testify.
Sec. 115-10.2. Admissibility of prior statements
when witness refused to testify despite a court
order to testify.
(a) A statement not specically covered by any
other hearsay exception but having equivalent cir-
cumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule if the declarant is un-
available as dened in subsection (c) and if the court
determines that:
(1) the statement is oered as evidence of a
material fact; and
(2) the statement is more probative on the
point for which it is oered than any other evi-
dence which the proponent can procure through
reasonable eorts; and
(3) the general purposes of this Section and
the interests of justice will best be served by ad-
mission of the statement into evidence.
(b) A statement may not be admitted under this
exception unless the proponent of it makes known
to the adverse party suciently in advance of the tri-
al or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent’s
intention to oer the statement, and the particulars
of the statement, including the name and address of
the declarant.
(c) Unavailability as a witness is limited to the
situation in which the declarant persists in refusing
to testify concerning the subject matter of the de-
clarant’s statement despite an order of the court to
do so.
(d) A declarant is not unavailable as a witness if
exemption, refusal, claim or lack of memory, inabil-
ity or absence is due to the procurement or wrong-
doing of the proponent of a statement for purpose of
preventing the witness from attending or testifying.
(e) Nothing in this Section shall render a prior
statement inadmissible for purposes of impeachment
because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(f) Prior statements are admissible under this
Section only if the statements were made under oath
and were subject to cross-examination by the adverse
party in a prior trial, hearing, or other proceeding.
(Source: P.A. 93-413, e. 8-5-03; 93-443, e. 8-5-03;
94-53, e. 6-17-05.)
362
APPendIx P
725 ILCS 5/115-10.2a. Admissibility of prior statements in domestic violence prosecutions when the
witness is unavailable to testify.
Sec. 115-10.2a. Admissibility of prior statements in
domestic violence prosecutions when the witness is
unavailable to testify.
(a) In a domestic violence prosecution, a state-
ment, made by an individual identied in Section
201 of the Illinois Domestic Violence Act of 1986
as a person protected by that Act, that is not spe-
cically covered by any other hearsay exception but
having equivalent circumstantial guarantees of trust-
worthiness, is not excluded by the hearsay rule if the
declarant is identied as unavailable as dened in
subsection (c) and if the court determines that:
(1) the statement is oered as evidence of a
material fact; and
(2) the statement is more probative on the
point for which it is oered than any other evi-
dence which the proponent can procure through
reasonable eorts; and
(3) the general purposes of this Section and
the interests of justice will best be served by ad-
mission of the statement into evidence.
(b) A statement may not be admitted under this
exception unless the proponent of it makes known
to the adverse party suciently in advance of the tri-
al or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent’s
intention to oer the statement, and the particulars
of the statement, including the name and address of
the declarant.
(c) Unavailability as a witness includes circum-
stances in which the declarant:
(1) is exempted by ruling of the court on the
ground of privilege from testifying concerning the
subject matter of the declarant’s statement; or
(2) persists in refusing to testify concerning
the subject matter of the declarant’s statement de-
spite an order of the court to do so; or
(3) testies to a lack of memory of the subject
matter of the declarant’s statement; or
(4) is unable to be present or to testify at the
hearing because of health or then existing physical
or mental illness or inrmity; or
(5) is absent from the hearing and the propo-
nent of the statement has been unable to procure
the declarant’s attendance by process or other rea-
sonable means; or
(6) is a crime victim as dened in Section 3 of
the Rights of Crime Victims and Witnesses Act
and the failure of the declarant to testify is caused
by the defendant’s intimidation of the declarant
as dened in Section 12-6 of the Criminal Code
of 2012.
(d) A declarant is not unavailable as a witness if
exemption, refusal, claim of lack of memory, inabil-
ity, or absence is due to the procurement or wrong-
doing of the proponent of a statement for purpose of
preventing the witness from attending or testifying.
(e) Nothing in this Section shall render a prior
statement inadmissible for purposes of impeachment
because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(Source: P.A. 93-443, e. 8-5-03; P.A. 97-1150, § 635,
e. Jan. 25, 2013.)
363
APPendIx Q
725 ILCS 5/115-10.3. Hearsay exception regarding elder adults.
Sec. 115-10.3. Hearsay exception regarding elder
adults.
(a) In a prosecution for a physical act, abuse,
neglect, or nancial exploitation perpetrated upon
or against an eligible adult, as dened in the Adult
Protective Services Act, who has been diagnosed by
a physician to suer from (i) any form of dementia,
developmental disability, or other form of mental in-
capacity or (ii) any physical inrmity, including but
not limited to prosecutions for violations of Sections
10-1, 10-2, 10-3, 10-3.1, 10-4, 11-1.20, 11-1.30,
11-1.40, 11-1.50, 11-1.60, 11-11, 12-1, 12-2, 12-
3, 12-3.05, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2,
12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4,
12-11, 12-11.1, 12-13, 12-14, 12-15, 12-16, 12-21,
16-1, 16-1.3, 17-1, 17-3, 17-56, 18-1, 18-2, 18-3,
18-4, 18-5, 18-6, 19-6, 20-1.1, 24-1.2, and 33A-2,
or subsection (b) of Section 12-4.4a of the Criminal
Code of 2012, the following evidence shall be ad-
mitted as an exception to the hearsay rule:
(1) testimony by an eligible adult, of an out of
court statement made by the eligible adult, that
he or she complained of such act to another; and
(2) testimony of an out of court statement
made by the eligible adult, describing any com-
plaint of such act or matter or detail pertaining to
any act which is an element of an oense which
is the subject of a prosecution for a physical act,
abuse, neglect, or nancial exploitation perpetrat-
ed upon or against the eligible adult.
(b) Such testimony shall only be admitted if:
(1) e court nds in a hearing conducted
outside the presence of the jury that the time,
content, and circumstances of the statement pro-
vide sucient safeguards of reliability; and
(2) e eligible adult either:
(A) testies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement.
(c) If a statement is admitted pursuant to this
Section, the court shall instruct the jury that it is
for the jury to determine the weight and credibility
to be given the statement and that, in making the
determination, it shall consider the condition of the
eligible adult, the nature of the statement, the cir-
cumstances under which the statement was made,
and any other relevant factor.
(d) e proponent of the statement shall give the
adverse party reasonable notice of his or her inten-
tion to oer the statement and the particulars of the
statement.
(Source: P.A. 96-1551, Article 1, Section 965, e.
7-1-11; 96-1551, Article 2, Section 1040, e. 7-1-11;
96-1551, Article 10, Section 10-145, e. 7-1-11; 97-
1108, e. 1-1-13; 97-1109, e. 1-1-13; P.A. 98-49, §
105, e. 7-1-13.)
364
APPendIx R
725 ILCS 5/115-10.4. Admissibility of prior statements when witness is deceased.
Sec. 115-10.4. Admissibility of prior statements
when witness is deceased.
(a) A statement not specically covered by any
other hearsay exception but having equivalent cir-
cumstantial guarantees of trustworthiness is not ex-
cluded by the hearsay rule if the declarant is deceased
and if the court determines that:
(1) the statement is oered as evidence of a
material fact; and
(2) the statement is more probative on the
point for which it is oered than any other evi-
dence which the proponent can procure through
reasonable eorts; and
(3) the general purposes of this Section and
the interests of justice will best be served by ad-
mission of the statement into evidence.
(b) A statement may not be admitted under this
exception unless the proponent of it makes known
to the adverse party suciently in advance of the
trial or hearing to provide the adverse party with a
fair opportunity to prepare to meet it, the propo-
nent’s intention to oer the statement, and the par-
ticulars of the statement, including the name of the
declarant.
(c) Unavailability as a witness under this Section
is limited to the situation in which the declarant is
deceased.
(d) Any prior statement that is sought to be ad-
mitted under this Section must have been made by
the declarant under oath at a trial, hearing, or other
proceeding and been subject to cross-examination
by the adverse party.
(e) Nothing in this Section shall render a prior
statement inadmissible for purposes of impeachment
because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(Source: P.A. 94-53, e. 6-17-05.)
365
APPendIx s
735 ILCS 5/8-2701. Admissibility of evidence; out of court statements; elder abuse.
Sec. 8-2701. Admissibility of evidence; out of court
statements; elder abuse.
(a) An out of court statement made by an eli-
gible adult, as dened in the Adult Protective Ser-
vices Act, who has been diagnosed by a physician
to suer from (i) any form of dementia, develop-
mental disability, or other form of mental incapac-
ity or (ii) any physical inrmity which prevents the
eligible adult’s appearance in court, describing any
act of elder abuse, neglect, or nancial exploitation,
or testimony by an eligible adult of an out of court
statement made by the eligible adult that he or she
complained of such acts to another, is admissible in
any civil proceeding, if:
(1) the court conducts a hearing outside the
presence of the jury and nds that the time, con-
tent, and circumstances of the statement provide
sucient safeguards of reliability; and
(2) the eligible adult either:
(A) testies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement.
(b) If a statement is admitted pursuant to this
Section, the court shall instruct the jury that it is
for the jury to determine the weight and credibility
to be given to the statement and that, in making
its determination, it shall consider the condition of
the eligible adult, the nature of the statement, the
circumstances under which the statement was made,
and any other relevant factors.
(c) e proponent of the statement shall give the
adverse party reasonable notice of an intention to
oer the statement and the particulars of the state-
ment.
(Source: P.A. 90-628, e. 1-1-99; P.A. 98-49, § 110,
e. 7-1-13.)
366
APPendIx T
735 ILCS 5/8-2601. Admissibility of evidence; out-of-court statements; child abuse.
Sec. 8-2601. Admissibility of evidence; out-of-
court statements; child abuse.
(a) An out-of-court statement made by a child
under the age of 13 describing any act of child abuse
or any conduct involving an unlawful sexual act per-
formed in the presence of, with, by, or on the declar-
ant child, or testimony by such of an out-of-court
statement made by such child that he or she com-
plained of such acts to another, is admissible in any
civil proceeding, if: (1) the court conducts a hearing
outside the presence of the jury and nds that the
time, content, and circumstances of the statement
provide sucient safeguards of reliability; and (2)
the child either: (i) testies at the proceeding; or (ii)
is unavailable as a witness and there is corroborative
evidence of the act which is the subject of the state-
ment.
(b) If a statement is admitted pursuant to this
Section, the court shall instruct the jury that it is
for the jury to determine the weight and credibility
to be given to the statement and that, in making its
determination, it shall consider the age and maturity
of the child, the nature of the statement, the circum-
stances under which the statement was made, and
any other relevant factors.
(c) e proponent of the statement shall give the
adverse party reasonable notice of an intention to
oer the statement and the particulars of the state-
ment.
(Source: P.A. 85-1440, e. 2-1-89.)
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APPendIx u
725 ILCS 5/115-10. Certain hearsay exceptions.
Sec. 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of
13, or a person who was a person with a moderate,
severe, or profound intellectual disability as dened
in this Code and in Section 2-10.1 of the Crimi-
nal Code of 1961 or the Criminal Code of 2012 at
the time the act was committed, including but not
limited to prosecutions for violations of Sections 11-
1.20 through 11-1.60 or 12-13 through 12-16 of
the Criminal Code of 1961 or the Criminal Code
of 2012 and prosecutions for violations of Sections
10-1 (kidnapping), 10-2 (aggravated kidnapping),
10-3 (unlawful restraint), 10-3.1 (aggravated unlaw-
ful restraint), 10-4 (forcible detention), 10-5 (child
abduction), 10-6 (harboring a runaway), 10-7 (aid-
ing or abetting child abduction), 11-9 (public in-
decency), 11-11 (sexual relations within families),
11-21 (harmful material), 12-1 (assault), 12-2 (ag-
gravated assault), 12-3 (battery), 12-3.2 (domestic
battery), 12-3.3 (aggravated domestic battery), 12-
3.05 or 12-4 (aggravated battery), 12-4.1 (heinous
battery), 12-4.2 (aggravated battery with a rearm),
12-4.3 (aggravated battery of a child), 12-4.7 (drug
induced iniction of great bodily harm), 12-5 (reck-
less conduct), 12-6 (intimidation), 12-6.1 or 12-6.5
(compelling organization membership of persons),
12-7.1 (hate crime), 12-7.3 (stalking), 12-7.4 (ag-
gravated stalking), 12-10 or 12C-35 (tattooing the
body of a minor), 12-11 or 19-6 (home invasion),
12-21.5 or 12C-10 (child abandonment), 12-21.6
or 12C-5 (endangering the life or health of a child)
or 12-32 (ritual mutilation) of the Criminal Code
of 1961 or the Criminal Code of 2012 or any sex
oense as dened in subsection (B) of Section 2 of
the Sex Oender Registration Act, the following evi-
dence shall be admitted as an exception to the hear-
say rule
(1) testimony by the victim of an out of court
statement made by the victim that he or she com-
plained of such act to another; and
(2) testimony of an out of court statement
made by the victim describing any complaint of
such act or matter or detail pertaining to any act
which is an element of an oense which is the
subject of a prosecution for a sexual or physical
act against that victim.
(b) Such testimony shall only be admitted if:
(1) e court nds in a hearing conducted
outside the presence of the jury that the time,
content, and circumstances of the statement pro-
vide sucient safeguards of reliability; and
(2) e child or moderately, severely, or pro-
foundly intellectually disabled person either:
(A) testies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the
subject of the statement; and
(3) In a case involving an oense perpetrat-
ed against a child under the age of 13, the out
of court statement was made before the victim
attained 13 years of age or within 3 months af-
ter the commission of the oense, whichever
occurs later, but the statement may be admit-
ted regardless of the age of the victim at the
time of the proceeding.
(c) If a statement is admitted pursuant to this
Section, the court shall instruct the jury that it is
for the jury to determine the weight and credibility
to be given the statement and that, in making the
determination, it shall consider the age and matu-
rity of the child, or the intellectual capabilities of
the person with a moderate, severe, or profound in-
tellectual disability, the nature of the statement, the
circumstances under which the statement was made,
and any other relevant factor.
368
(d) e proponent of the statement shall give the
adverse party reasonable notice of his intention to
oer the statement and the particulars of the state-
ment.
(e) Statements described in paragraphs (1) and
(2) of subsection (a) shall not be excluded on the
basis that they were obtained as a result of inter-
views conducted pursuant to a protocol adopted
by a Child Advocacy Advisory Board as set forth in
subsections (c), (d), and (e) of Section 3 of the Chil-
dren’s Advocacy Center Act or that an interviewer
or witness to the interview was or is an employee,
agent, or investigator of a State’s Attorney’s oce.
(Source: P.A. 96-710, § 40, e. 1-1-10; P.A. 96-1551,
Art. 1, § 965, e. 7-1-11; P.A. 96-1551, Art. 2, § 1040,
e. 7-1-11; P.A. 97-227, § 140, e. 1-1-12; P.A. 97-
1108, § 15-30, e. 1-1-13; P.A. 97-1109, § 10-955,
e. 1-1-13; P.A. 97-1150, § 635, e. 1-25-13; P.A. 99-
143, § 890, e. 7-27-15.)
